Family, Religion and Law

Cultural Encounters in Europe

Prakash Shah, Marie-Claire Foblets

• Publisher: Routledge
• Year: 2016
• eBook ISBN: 9781317136477
• Topic: Law
• Subtopic: Family Law
• Index: Law

This collection discusses how official legal systems do and should respond to the reality of a plurality of family types and origins within their jurisdictions. It further examines the challenges that arise for practitioners, including lawyers and judges, when faced with such plurality. Focussing on empirical research, the volume presents legal and sociological data of unprecedented comparative depth. It also includes a discussion of how members of minority families respond to the need to organise their legal relationships, and to resolve their disputes in the shadow of official legal systems which differ from those of their familial and communal traditions. The work invites reflection, and demonstrates the urgency and complexity of the questions regarding the search for justice in the field of family life in Europe today.

Chapter 1 Distorting Minority Laws? Religious Diversity and European Legal Systems

Prakash Shah¹

DOI: 10.4324/9781315581958-1

¹ Particular thanks are due to Professor Veit Bader and Professor Werner Menski for helpful discussions and comments about this chapter, to the various national RELIGARE project teams who have done the hard ground work to produce the results that have gone into this chapter, and to Manprit Kaur Virdi and Alberto Horst-Neidhardt, the RELIGARE postgraduate researchers, for their hard work compiling the research results.

The contributors to this book examine how European legal systems have received aspects of diverse family life and accompanying legal institutions in the context of increasing religious diversity and transjurisdictionalism among Europe’s populations. This context-setting chapter draws mainly on evidence of legislation, case law and fieldwork collected within the context of the RELIGARE Project, which was funded by the European Commission (2010–2013).² The RELIGARE Project surveyed legal developments within 10 countries (Belgium, Bulgaria, Denmark, England, France, Germany, Italy, the Netherlands, Spain and Turkey), as well as supranational case law from the European Court of Human Rights, with respect to how the various legal orders cope with aspects of religious diversity. Although the RELIGARE project research concerned the 10 countries listed, this book benefits from drawing into its scope material from other, primarily Euro-American, jurisdictions.

² The research leading to these results has received funding from the European Commission’s Seventh Framework Programme (FP7/2007–2013) under grant agreement number 244635. The views expressed during the execution of the RELIGARE project, in whatever form and or by whatever medium, are the sole responsibility of the author. The European Union is not liable for any use that may be made of the information contained therein. For further information about the research produced by the RELIGARE Project see http://www.religareproject.eu [last accessed 14 December 2013].

When considering family laws and religious diversity, at least three major factors constituting the wider backdrop have to be borne in mind. First, as with many branches of law in European legal systems, the roots of concepts and institutions within family law lie within the Christian religion. However much they may be secularised today, as several contributors to this book point out (see Rohe, Chapter 3, and Jänterä-Jareborg, Chapter 4), we can find traces of Christian religious presuppositions which lie behind contemporary legal rules and institutional arrangements. This does not mean that change has not been an ongoing process; it most certainly has. While differences among European legal systems remain quite visible, a trend in more or less the same direction has been taking place. As the comparative family lawyer Masha Antokolskaia (2003: 58) notes of divorce laws, ‘There is an undeniable movement in the same direction: the divorce law in every European country, despite temporary periods of retroactive movement or stagnation, is moving from more restrictive to more permissive divorce law.’³ Secularisation remains a significant factor shaping Europe’s official family law systems and, in cases such as Bulgaria, the process appears to have gone very far indeed. Over time, dominant religions have had to give way to the state taking over responsibility from the Churches for supervising family life and enacting generalised rules for the population at large. This has created its own problems since, while once the Churches’ canon law regarding the family could be seen as a set of personal law systems alongside those other systems followed by people of minority religions and traditions, a homogenised structure of family law poses the risk of overriding or covering up differences in a variety of cultures, religions and traditions and imposing a uniform set of solutions upon them. Besides that, the deeper the state became involved in the job of social engineering the more it risked interference in intimate areas of family life.

³ For marriage laws, see Antokolskaia (2006) and Witte (2012).

Second, Europe has indeed always remained plural despite historical attempts at homogenisation and penalisation of differences. It has also always contained minorities of different sorts. Jews, a long-standing historical and internally diverse minority population in Western and Eastern Europe and in the Ottoman Empire, remain a significant part of that diversity. During the period of legal homogenisation over the last 200 or so years they were subsumed under frameworks of uniform family laws (Schechter 2003, Schwarzfuchs 1979, Finestein 1993, Bayır 2013). They have not, however, lost their religious laws, and communities remain all over Europe seeking to maintain Jewish life. This entails that they continue to pose questions of official legal systems and courts (Herman 2011, and Rohe, Chapter 3). In various parts of Europe, Roma people have also maintained their customs and traditions and have often come into contact with official laws because many have refused to succumb to pressures for modification of their lifestyles (Weyrauch 2001). European countries have also long had Muslim populations, with different areas having different concentrations. Countries in south-eastern Europe have significant and long-present Muslim minorities, while Turkey is a Muslim majority country. Until about a century ago, Muslim family law was the official law enforceable in courts in many parts of the Ottoman Empire, its former territories and those states emerging from it (e.g., Karčić 2008). With the phasing out of this official Muslim personal law in most parts of south-east Europe, it applies only in Western Thrace, Greece, today (Tsitselikis 2012).

Third, the settlement of new minority populations from both outside and within the European Union (EU) has considerably added to the diversity and made legal systems face new challenges. Continuing transjurisdictional activities among people who include old and new citizens of the EU complicates this. All the authors writing in this book address these dimensions in one way or another. The older securities of gradual but inevitable secularisation and uniformisation are no longer guaranteed in the family law field. New diversities are emerging and challenging decision-makers to provide appropriate solutions. Customs and religious practices among more recent settlers and their descendants have not been altogether abandoned as a consequence of arrival and living in Europe. Under the homogenous official legal orders, customs and religious practices have in many cases simply gone ‘underground’ and survive, sometimes very vibrantly, but unofficially, as Sona (Chapter 6), Rabo (Chapter 9) and Taş (Chapter 11) confirm. As Francavilla (Chapter 5) discusses using different terminology, such ‘subalternisation’, or what are effectively forced navigational strategies, are a flip-side consequence of pursuing uniformistic legal regimes. This does not avoid official bodies facing circumstances for which they have to find accommodations and solutions, as Menski (Chapter 2) highlights for judges in particular. Meanwhile, contact with European societies and legal systems has provided opportunities for new hybrid laws to emerge which, on the one hand, provide opportunities and further legal options to people and, on the other hand, defy easy classification (Foblets 1994: 373, Pearl and Menski 1998: 74–80, Macfarlane 2012). Liversage (Chapter 8) shows how the inevitable changes have to be managed within families to ‘keep up appearances’ and not to reveal too much about how much has changed. Therefore, no clear framework has yet emerged as to how the legal issues brought by new diversities, combined with the ongoing older diversities, should be approached, although some ‘typical’ problems can be identified towards the continuing job of finding more suitable accommodations (Shah 2013a).

In matters of family law the dividing line between private and public international law is reduced for some countries where bilateral instruments with former colonies or third countries have been adopted to deal with the choice of law in matrimonial cases, notably in cases involving European nationals who also hold the nationality of third countries. The same applies in cases of adoption where the third country’s family law system is based on Islamic law. However, in general the involvement of non-Western countries in private international law agreements which concern family relations, for example, in the context of the Hague process, is patchy. This may not be surprising, first of all, given that Western countries appear to have largely succeeded in getting their priorities included in such agreements, but there is scant recognition of non-Western legal forms of conducting family relations. Western legal forms of conducting family relations, for instance in the areas of marriage, divorce and adoption, are mostly premised on state involvement at crucial points in the process. These tend to get prioritised, whereas non-state law forms of managing family relations, which are predominant for many non-Western countries, appear to be ignored and, in the practice of private international law by European courts, very often rejected as inappropriate.

These features of private international law making, whether on the part of individual European courts or through international conventions, therefore appear strongly characterised by unilateralism and, one might say, chauvinism. In a judgment of 29 October 1948 concerning a unilateral divorce made in Syria, the Appeals Court of Rome refused to recognise the legal effects of repudiation on the grounds that ‘it is abhorred by the moral and legal mentality of the peoples who have reached a higher degree of civilisation, and who have a far more advanced ethical and social concept of marriage than Eastern peoples’. A more recent example is shown in a judgment from 1984 by the English Court of Appeal, where Cumming-Bruce LJ said: ‘Pronouncement of talaq three times finally terminates the marriage in Kashmir, Dubai, and probably in other unsophisticated peasant, desert or jungle communities which respect classical Muslim religious tradition.’⁴ While European courts may no longer adopt this language, the structures embedding the kind of sentiments expressed by the courts continue to disfigure European legal systems in their approach to alterity. Thus, a sanitisation of language itself does not make the underlying structures disappear and, while flexibility may be shown by some European judges today, boundaries are also hardening in other respects (see Menski, Chapter 2, Rohe, Chapter 3, Jänterä-Jareborg, Chapter 4).

⁴ Chaudhary v Chaudhary [1985] Fam. 19, at 38.

Second, agreement over the (in)compatibility of legal concepts, which then impacts on mutual recognition, may be holding up the securing of agreements. Third, in many cases non-EU, third states are not actively involved in securing recognition for their nationals abroad and allow EU states to regulate matters according to their versions of private international law.⁵ They may not even be well informed about the fate of their nationals in EU states, but evidence cited in this book, in particular by Sona (Chapter 6) and Jänterä-Jareborg (Chapter 7), indicates that diplomatic premises of foreign countries may well be active in formalising the making or breakdown of family relationships. We also saw this recently in the case of Dukali v Lamrani involving a marriage conducted in compliance with the requirements of Moroccan law at the Moroccan consulate in London, and subsequently dissolved in Morocco.⁶ The former wife was told by the English court that she was not entitled to financial relief because her marriage was not recognised under English law.

⁵ An exception is the Hague Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children of 19 October 1996, recognising the kafala (an Islamic institution of adoption without inheritance), and acceded to by Morocco. ⁶ Dukali v Lamrani [2012] EWHC 1748 (Fam).

Further, the old models now embedded in European legal systems are in question. While the taken-for-granted models of legal uniformity are unsuited for providing a justice-oriented framework for the socio-legal cultures that currently inhabit European jurisdictions, it is increasingly felt that private international law models do not adequately allow for contemporary transjurisdictionalism to be captured appropriately. In particular, there has been some debate about the connecting factors – nationality, residence, domicile – and their continued appropriateness in an age of migration and transnationalism, and there is a perception that new mechanisms need to be developed to accommodate the presence of new minorities in Europe (Strijbosch and Foblets 1999, Büchler 2011). In other ways, too, the authors represented here (Rohe, Chapter 3, Jänterä-Jareborg, Chapter 7) show that ‘traditional’ private international law paradigms are no longer adequate to the task of accommodating transnational minorities, and Rabo (Chapter 9) and Sona (Chapter 6) define this problem even more sharply when they switch focus by looking from the ‘informal’ perspective of transnational families.

In order to flesh out and substantiate the above observations, this chapter focuses on some of the main elements of ...

Table of contents

• Cover Page
• Half Title Page
• Series
• Title Page
• Copyright Page
• Contents
• Notes on Contributors
• Preface
• Acknowledgements
• 1 Distorting Minority Laws? Religious Diversity and European Legal Systems
• 2 Plurality-Conscious Rebalancing of Family Law Regulation in Europe
• 3 Family and the Law in Europe: Bringing Together Secular Legal Orders and Religious Norms and Needs
• 4 On the Cooperation between Religious and State Institutions in Family Matters: Nordic Experiences
• 5 The Uniformisation of Family Law in Europe and the Place of Ethnic Minorities
• 6 Defending the Family Treasure Chest: Navigating Muslim Families and Secured Positivistic Islands of European Legal Systems
• 7 Cross-border Family Cases and Religious Diversity: What Can Judges Do?
• 8 Secrets and Lies: When Ethnic Minority Youth Have a Nikah
• 9 ‘Without Our Church We Will Disappear': Syrian Orthodox Christians in Diaspora and the Family Law of the Church
• 10 Religious Divorce in England and Wales: Religious Tribunals in Action
• 11 Kurdish ‘Unofficial' Family Law in the Gurbet1
• Index