Views
Islamic Marriage and English Divorce – a new Decision from the English High Court
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.
Much-awaited US Supreme Court decision has been rendered: Animal Science Products, Inc. v. Hebei Welcome Pharmaceutical Co. Ltd.
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.
The concept of ‘right of access’ under Brussels II bis encompasses grandparents
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. Read more
News
9th Journal of Private International Law Conference: Registration is now open!
We are pleased to announce that registration is now open for the 9th Journal of Private International Law Conference. The conference will be held on 3 to 5 August 2023 at the Yong Pung How School of Law at the Singapore Management University. The keynote address will be delivered by The Honourable Justice Philip Jeyaretnam, President of the Singapore International Commercial Court.
The deadline for speakers to register is 30 May 2023. The deadline for other registrants is 15 July 2023.
Registration is complimentary for speakers, Journal of Private International Law editorial board members and SMU faculty, staff and students. Preferential rates apply for academics, government officials, SMU alumni and non-SMU students – register with your institutional e-mail to enjoy the preferential rate.
More information, including the draft programme and link to register, can be found here. We look forward to welcoming you to Singapore.
Friendly Reminder: “Globalization through the re-codification of property law?”
As announced earlier on this blog, Professor Amnon Lehavi, Harry Radzyner Law School, Reichman University, Israel, will be speaking about ‘Globalization through the re-codification of property law?”:
The globalization of markets, technology, and interpersonal networks poses a growing challenge for national legal systems. Property law is traditionally considered a “domestic” field of law, not only because of its structural features (such as the in rem or numerus clausus principles), but also because it promotes cultural, economic, and social values. The decision if property law should be globalized also requires a choice among potential globalization strategies (how to do so). This lecture examines four globalization strategies: (1) soft law / private ordering; (2) conflict of laws; (3) approximation; and (4) supranationalism. It does so by comparing three types of assets: land, digital assets, and cultural property – which have all been dramatically affected by current processes of globalization, albeit in diverging ways. It is argued that different strategies of globalization, and corresponding forms of re-codification of national property laws, should be adopted for land, digital assets, and cultural property.
The event will take place on 17 May at 6.30pm at the Senate Hall of the University of Bonn; it can also be joined via Zoom. The flyer can be found here.
Seminar on the Service and Evidence Regulations recast – at Maastricht University on 19 June 2023 (in Dutch)
A seminar will be held on 19 June 2023 at Maastricht University in the Netherlands concerning the Service and Evidence Regulations recast (see here our previous post regarding these regulations).
This seminar is being organised within the framework of the DIGI-GUARD project, which is co-funded by the European Union under the JUST-2021-JCOO program and which stands for Digital communication and safeguarding the parties’ rights: challenges for European civil procedure.