In England, almost all married Muslim women have had a nikah, a religious celebration. By contrast, more than half of them have not also gone through a separate civil ceremony, as required under UK law. The often unwelcome consequence is that, under UK law, they are not validly married and therefore insufficiently protected under UK law: they cannot claim maintenance, and they cannot get a divorce as long as the marriage is viewed, in the eyes of the law, as a nullity.
The government has tried for some time to remedy this, under suspicious gazes from conservative Muslims on the one hand, secularists on the other. A 2014 report (the ‘Aurat report’), which demonstrated, by example of 50 cases, the hardships that could follow from the fact that nikahs are not recognized, found attention in the government party. An independent review into the application of sharia law in England and law, instigated by Theresa May (then the Home Secretary) in 2016 and published earlier this year, recommended to ensure that all Islamic marriages would also be registered; it also recommended campaigns for increased awareness.
Such steps do not help where the wedding already took place and has not been registered. A new decision by the High Court brings partial relief. Nasreen Akhter (who is a solicitor and thus certainly not an uneducated woman ignorant of the law) asked to be divorced from her husband of twenty years, Mohammed Shabaz Khan. Khan’s defense was that the marriage, which had been celebrated as a nikah in west London, existed only under Islamic, not under UK law, and therefore divorce under UK law was not possible. Indeed, up until now, the nikah had been considered a non-marriage which the law could ignore, because it did not even purport to comply with the requirements of English law. The High Court was unwilling to presume the lived marriage as valid. However, drawing at length on Human Rights Law, it declared the marriage void under sec 11 of the Matrimonial Causes Act 1973 and granted the wife a decree of nullity. This has important consequences: Unlike a non-marriage, a void marriage allows a petitioner to obtain financial remedies.
The decision represents a huge step towards the protection of women whose Islamic marriages are not registered. It makes it harder for men to escape their obligations under civil law. At the same time, the decision is not unproblematic: it refuses recognition of an Islamic marriage as such, while at the same time, under certain conditions, treating it like a recognized marriage. In all likelihood, only registration will create the needed certainty.
The decision is here.
The decision is available here and further documentation is available here. I would also like to refer to previous posts by fellow editors here and here. The US Supreme Court held that: “A federal court determining foreign law under Federal Rule of Civil Procedure 44.1 should accord respectful consideration to a foreign government’s submission, but the court is not bound to accord conclusive effect to the foreign government’s statements.”
In a nutshell, the US Supreme Court said that the weight to be given to foreign government statements depends on the circumstances of the case. In particular, it notes that “[t]he appropriate weight [a federal court determining foreign law should give to the views presented by a foreign government] in each case, however, will depend upon the circumstances; a federal court is neither bound to adopt the foreign government’s characterization nor required to ignore other relevant materials. No single formula or rule will fit all cases, but relevant considerations include the statement’s clarity, thoroughness, and support; its context and purpose; the transparency of the foreign legal system; the role and authority of the entity or official offering the statement; and the statement’s consistency with the foreign government’s past positions.”
One thing of note is that the US Supreme Court refers to Société Nationale Industrielle Aérospatiale v. United States Dist. Court for Southern Dist. of Iowa, 482 U. S. 522, which is a very important case in the context of the Hague Evidence Convention.
In the judgment C-335/17 of 31 May 2018, the CJEU confirms that the autonomous concept of ‘right of access’ under Brussels II bis Regulation encompasses the rights of access of grandparents to their grandchildren. (more…)
Originally posted on the NGPIL website
The NGPIL previously announced a Prize of 300 British Pounds Sterling for the best paper on Nigerian conflict of laws for an undergraduate and/or postgraduate scholar studying in Nigeria, or any Nigerian lawyer five years call or below practicing and residing in Nigeria.
A call for paper commenced in September 2021 with submissions received from participants across various States in Nigeria, entries from undergraduates and postgraduates in law, and early years post-call practitioners.
Following the submission deadline on 10 January 2022, the NGPIL made an assessment that Mr Solomon Adegboyo, an LLM student at the University of Ibadan, emerged winner of the competition. Mr Adegboyo’s winning entry is titled “Tort in the Conflict of Laws: A Comparative Analysis”. Mr Olawale Adeosun, an LLM student at the University of Lagos, emerged the first runner up. Miss Hope Olajumoke a Nigerian law graduate (1 year post call to the Bar, Ekiti State University) emerged the 2nd runner up.
The response to the call was very encouraging and it is hoped this will be the springboard to encouraging, nurturing, and strengthening the foundations of private international law in Nigeria from earlier stages of academia and practice. This initiative will also assist with targeting areas of improvement such as addressing the lack of materials and resources on conflict of laws in Nigeria.
Huge congratulations to the winner and thank you to our runners-up and other participants!
The Institute for Private International and Comparative Law of the University of Cologne (Professor Mansel) is looking to appoint one to two Research Assistant(s) (Wissenschaftliche/r Mitarbeiter/in) on fixed-term contracts for 2 years, with contract extension possible, based in Cologne. The successful candidate(s) can be appointed full time (39.83 hrs/week) or part-time (19.92 hrs/week), with the latter option allowing for the completion of a PhD thesis. A German State Exam in law with above-average marks is required. In addition, proficiency in the Dutch, Italian, Spanish, or French language is an advantage. The remuneration will be based on pay group 13 TV-L.
The University of Cologne promotes equal opportunities and diversity in its employment relationships. Women are expressly invited to apply and will be given preferential treatment in accordance with the LGG NRW. Applications from severely disabled persons are very welcome. They will be given preferential consideration if suitable for the position.
Interested candidates are invited to send their detailed application including the usual documents in a single .pdf file by 20 March 2022 to firstname.lastname@example.org, for the attention of Professor Mansel.
In Memoriam Prof. Konstantinos D. Kerameus (21.4.1937-26.12.2021)
Professor Kerameus started his academic career at the Law School of the Aristotle University of Thessaloniki, in his home town, and completed his career at the University of Athens. He taught Civil Procedure, Comparative and International Procedural Law in Greek and other leading Universities abroad.
He was awarded Honorary Doctor of Laws by the Universities of Hamburg (1993), Paris II Pantheon-Assas (2000), Liege (2003) and Vienna (2003). He was the President of the International Academy of Comparative Law (1998-2006), Director of the Hellenic Institute of International and Foreign Law (1990-2007), member of the European Academy (since 1994), the International Union of Legal Science (since 1993) and the International Union of Procedural Law (since 1995)y. He represented Greece in the conference on the Lugano Convention, in the negotiations for the accession of Greece to the Brussels Convention, as well as in various committees for the harmonization of the law of contracts, torts and civil procedure in the EU.
His Report, co-authored with Dimitrios Evrigenis, on the accession of Greece in the Brussels Convention (OJ C-298/24-11-1986) has always been a leading guide in the field of European procedural law. The breadth of his interests also covered the work of the Hague Conference. In this context, he gave lectures on the topic of ‘Enforcement in the International Context’– Collected Courses of the Hague Academy of International Law (Volume 264), 1997.
The 2019 Hague Convention on the Recognition of Foreign Judgments will make it possible for foreign, non-EU, decisions to be recognized under common terms in EU jurisdictions, and vice versa. The presentation of these developments is the main subject of the present issue (Focus).
The introduction (Praefatio) was conducted by the Greek Attorney General to the ECJ, Honorary President of the Council of State, Mr. Athanasios Rantos. The main topic of the issue was the subject of an online conference (3.12.2021), with the participation of experienced professionals on the topic in our country,and of leading foreign scientists, who participated in the works of the 2019 Hague Convention.
The general introduction was assigned to the Director of the Directorate-General for Justice of the European Commission, Dr. Andreas Stein, who participated in the works of the 2019 Convention as the head of the EU delegation.
The Chair of the meeting, Emeritus Professor of the Law School of Thessaloniki Ms. Anastasia Grammatikaki-Alexiou, who has repeatedly represented Greece in the works of the Plenary or Committees of the Hague Conference, and has taught at the Hague Academy of International Law, outlined ‘[t]he great contribution of the Hague Conference in the field of private international law’.
Directly from the USA, the President of the American Association of Comparative Law, Professor of the Law School at Willamette University, Mr. Symeon Symeonides, who participated in the work of the 2019 Convention as the representative of the Republic of Cyprus, gave his valuable thoughts on the topic. Professor Symeonides presented the theme ‘The Hague Treaty for the Recognition of Foreign Decisions-The Lowest Common Denominator’, identifying the most interesting points of the Convention and highlighting critical aspects of its text.
Judge Dimitrios Titsias, Justice Counselor, Permanent Representation of Greece to the EU, explored ‘[t]he limits of EU’ s external jurisdiction over the Hague Conventions’. The rest of the panel analyzed the individual provisions of the Hague Conventions, which will be of considerable concern to our courts in the near future. Dr. Ioannis Revolidis, Lecturer of Media, Communications and Technology Law at the University of Malta, discussed the topic of the ‘Recognition and enforcement of international judgments after the revival of the Hague Convention’; Ms. Anastasia Kalantzi, Doctoral Candidate at the Aristotle University of Thessaloniki analyzed the topic ‘Points of convergence and divergence of the Hague Convention of 2005 and Regulation 1215/2012 on issues of extension of jurisdiction’; Dr. Vassilios Sarigiannidis, Head of the competent authority at the Ministry of Justice, presented the issue of ‘The system of cooperation between Central Authorities in the framework of the implementation of the 1980 and 1996 Hague Conventions on the protection of children’.
Among the judgments presented in this issue, a special mention has to be made of the following: the ECJ decision of 18.5.2021, Asocia?ia ‘Forumul Judec?torilor din Rumania’, with a comment by the associate in the International Hellenic University Ms. Raf. Tsertsidou, on the relationship between the regulations on the organization of justice in Romania and the requirements of the rule of law and the independence of the judiciary; the ECJ decision of 9.9.2021, Toplofikatsia Sofia, with a case comment by Judge Mr. Ant.Vathrakokilis; the ECJ decision of 3.9.2020, mBank S.A./PA, with a case comment by Judge Ms. St.-Ag. Kapaktsi.
Concerning national court decisions, it is worth mentioning the 2020 Supreme Court of Cyprus judgment (No 122/13, 143/13), with a case comment by Cypriot jurists Dr. N. Mouttotos, University of Bremen, and Dr. N. Kyriakides, University of Nicosia, regarding the effect of the Directive No 93/13 on consumer contracts in the reversal of the final judgment under national law; the judgment of the Greek Supreme Court No 820/2021, with a note by Dr. Ap. Anthimos and Solicitor (England/Wales) Dr. K. Voulgarakis, on the obstruction of the right to judicial protection by orders of courts of another Member State, which led to the submission of relevant preliminary question to the ECJ, as well as the decision of the Athens First Instance Court No 312/2019, with a case note by Dr. Ch. Meidanis, on the role of the jurisdiction of torts in case of the fall of a Greek warplane in a NATO exercise in Spain.
In the column of Scientific Topics, the volume hosts a study by Dr. G.-A. Georgiadis, on the 10-year anniversary of the 2007 Hague Protocol on the law applicable to maintenance obligations, while the L&F Praxis section presents the main problems of the EAPO, which raise many practical concerns, by Judge Mr. I. Valmantonis.
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