Posts

Staying Proceedings under the Civil Code of Quebec

Written by Professor Stephen G.A. Pitel, Western University

The decision of the Supreme Court of Canada in R.S. v P.R., 2019 SCC 49 (available here) could be of interest to those who work with codified provisions on staying proceedings. It involves interpreting the language of several such provisions in the Civil Code of Quebec. Art. 3135 is the general provision for a stay of proceedings, but on its wording and as interpreted by the courts it is “exceptional” and so the hurdle for a stay is high. In contrast, Art. 3137 is a specific provision for a stay of proceedings based on lis pendens (proceedings underway elsewhere) and if it applies it does not have the same exceptional nature. This decision concerns Art. 3137 and how it should be interpreted. Read more

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.

Swiss Institute of Comparative Law: 24e Journée de DIP on International Family Law

On Friday, 16th March 2012, the Swiss Institute of Comparative Law (ISDC) will host the 24th Journée de droit international privé, organised in collaboration with the University of Lausanne (Center of Comparative Law, European Law and International Law – CDCEI). The conference will analyse the latest developments in international family law, under a Swiss and an EU perspective : “Derniers développements suisses et européens en droit international privé de la famille”. Here’s the programme:

Mot de bienvenue par les organisateurs (09h00 – 09h10):

  • Christina Schmid (Directrice à l’Institut suisse de droit comparé);
  • Andrea Bonomi (Directeur CDCEI de l’Université de Lausanne).

Première Session (09h10 – 11h00)
Le divorce et ses conséquences:

  • La révision du droit international privé du divorce et de la  prévoyance professionnelle, Gian Paolo Romano (Professeur, Université de Genève);
  • Le droit applicable en matière de divorce selon le règlement  européen Rome III, Cristina Gonzalez Beilfuss (Professeure, Université de Barcelone);
  • Le droit applicable aux conséquences patrimoniales du divorce  dans les Etats de l’Union européenne, Andrea Bonomi (Professeur, Université de Lausanne)
  • Discussion et questions.

Franzina (Ed.), Commentary on Rome III Regulation

The Italian journal Le Nuove Leggi Civili Commentate  has published in its latest issue (no. 6/2011) an extensive commentary of the Rome III Regulation (Council Regulation (EU) No 1259/2010, implementing enhanced cooperation in the area of the law applicable to divorce and legal separation). The same journal had published, back in 2009, the first article-by-article comment of the Rome I Reg. (see our previous post here).

The commentary has been written, under the editorship of Pietro Franzina (Univ. of Ferrara), by a team of Italian scholars: Giacomo Biagioni (Univ. of Cagliari), Zeno Crespi Reghizzi (Univ. of Milano), Antonio Leandro (Univ. of Bari) and Giulia Rossolillo (Univ. of Pavia). Here’s the comments’ list:

Introductory remarks: P. Franzina, Z. Crespi Reghizzi; Art. 1: G. Rossolillo; Arts. 2-3: P. Franzina; Art. 4: A. Leandro; Arts. 5-7: G. Biagioni; Art. 8: Z. Crespi Reghizzi; Art. 9: G. Rossolillo; Arts. 10-13: A. Leandro; Arts. 14-15: P. Franzina; Art. 16: G. Rossolillo; Art. 17: G. Biagioni; Art. 18: Z. Crespi Reghizzi; Art. 19: G. Biagioni; Art. 20: G. Rossolillo; Art. 21: Z. Crespi Reghizzi.

Rome III Regulation Published in the Official Journal

The Rome III regulation (see our most recent post here, with links to the previous ones) has been published in the Official Journal of the European Union n. L 343 of 29 December 2010. The official reference is the following: 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 (OJ n. L 343, p. 10 ff.).

Pursuant to its Art. 21(2), the regulation should apply from 21 June 2012 in the 14 Member States which currently participate in the enhanced cooperation (Belgium, Bulgaria, Germany, Spain, France, Italy, Latvia, Luxembourg, Hungary, Malta, Austria, Portugal, Romania and Slovenia).

Art. 18 (Transitional provisions) provides that “[the] regulation shall apply only to legal proceedings instituted and to agreements of the kind referred to in Article 5 [choice of the applicable law by the spouses] concluded as from 21 June 2012”. The same article stipulates that “effect shall also be given to an agreement on the choice of the applicable law concluded before 21 June 2012, provided that it complies with Articles 6 and 7” (rules governing material and formal validity of the agreement). As regards proceedings commenced in the court of a participating Member State before 21 June 2012, the regulation will be without prejudice to pacta de lege utenda concluded in accordance with the law of that State (Art. 18(2)).

Rome III Regulation Adopted by Council

As a Christmas gift for European PIL scholars, the first enhanced cooperation in the history of the EU has been achieved in the field of conflict of laws (on the origin of the initiative see our previous post here).

The Council, in its meeting of 20 December 2010, adopted the Rome III regulation implementing enhanced cooperation in the area of the law applicable to divorce and legal separation (for previous steps of the procedure, see here and here). As of mid-2012 (18 months after its adoption, pursuant to Art. 21), the Rome III reg. will apply in the 14 Member States which have been authorised to participate in the enhanced cooperation by Council decision no. 2010/405/EU: Belgium, Bulgaria, Germany, Spain, France, Italy, Latvia, Luxembourg, Hungary, Malta, Austria, Portugal, Romania and Slovenia. Further Member States which wish to participate may do so in accordance with the second or third subparagraph of Article 331(1) of the Treaty on the Functioning of the European Union.

The text of the new regulation is available in Council doc. no. 17523/10 of 17 December 2010; after the signing of the President of the Council, it will be soon published in the Official Journal. The regulation is accompanied by a Declaration of the Council regarding the insertion of a provision on forum necessitatis in reg. no. 2201/2003, worded as follows:

Rome III: Agreement in Council on the Text of the New Rules on Divorce and Legal Separation

The JHA Council, in its meeting held on 3 December 2010 in Brussels, agreed on the text (doc. n. 17045/10) of the Rome III regulation implementing enhanced cooperation in the area of the law applicable to divorce and legal separation (see our previous post here).

As stated in the Council’s press release (doc. n. 17151/10),

The new rules will apply to all participating member states as of mid-2012. Other EU member states which are not yet ready but wish to join this pioneer group at a later stage will be able to do so. The agreement also constitutes the implementation of the first enhanced cooperation in the history of the EU.

For its adoption two more procedural steps are necessary:  The European Parliament is expected to adopt an opinion on the file in its December plenary session.  The Council will then adopt the new rules without discussion, most likely at the Environment Council on 20 December 2010.

Rome III Reg.: Council Adopts Decision Authorising Enhanced Cooperation on the Law Applicable to Divorce

On Monday, 12 July 2010, the Council adopted a decision authorising 14 Member States (Spain, Italy, Hungary, Luxembourg, Austria, Romania, Slovenia, Bulgaria, France, Germany, Belgium, Latvia, Malta and Portugal) to participate in the first enhanced cooperation in the history of the European Union, on the law applicable to divorce and legal separation (see the provisional version of the Council’s press release, doc. no. 12077/10, at p. 15).

As we reported in our previous posts, the initiative for an enhanced cooperation in the field originated in 2008, when the Council noted that there were insurmountable difficulties in reaching the required unanimity in order to adopt the Commission’s proposal amending the Brussels IIa Regulation and introducing rules concerning applicable law in matrimonial matters (Rome III reg.).

The first formal steps of the procedure are summarised as follows in Council document no. 10288/10 of 1 June 2010:

[…] Greece, Spain, Italy, Hungary, Luxembourg, Austria, Romania and Slovenia addressed a request to the Commission by letters dated 28 July 2008 indicating that they wished to establish enhanced cooperation between them in the area of applicable law in matrimonial matters and that they expected the Commission to submit a proposal to the Council to that end. Bulgaria addressed an identical request to the Commission by a letter dated 12 August 2008 and France by a letter dated 12 January 2009. On 3 March 2010, Greece withdrew its request. Germany, Belgium, Latvia and Malta joined the request by letters dated respectively 15 April 2010, 22 April 2010, 17 May 2010 and 31 May 2010. In total, thirteen Member States have thus requested enhanced cooperation.