Transnational divorces follow marriages in which one of the spouses, like Malika, has migrated. In doing so, spouses have crossed borders: state borders but possibly also religious, cultural, or ethnic borders. In this study, I focus on divorce in Dutch-Moroccan and Dutch-Egyptian transnational families, living in the Netherlands, Morocco, or Egypt. As border-crossers, transnational family members provide a lens for studying social norms and relations on a variety of issues. What is specific about state interventions in transnational families? What does it mean for families to have connections to two states? What can state interventions through migration law tell us about the āproperā family? What differences determine whether a marriage is considered mixed? How does this mixedness inform the experiences of family members? How do migration and citizenship influence the gendered division of labour and power relations in the family? How is the legal regulation of intimate relations experienced by family members? How can knowledge of these individual experiences contribute to our understanding of normative issues, such as legal pluralism in family law?Malika, a single mother working in government service in the Moroccan city of Casablanca, met Dutch businessman Martin when he was visiting Morocco for work. They fell in love and got married. For both it was their second marriage. The couple decided that, after their marriage in Morocco, they would live in the Netherlands, where Martin had his business, and that they would return to live in Morocco after Martinās three adolescent children would have left home. Malika also had a daughter, aged seven, whom she would bring to the Netherlands. After their marriage, it took the couple almost a year to navigate the complex Dutch migration procedures to get permission for Malika and her daughter to settle in the Netherlands. Malika used this time to sell her apartment, quit her job, and prepare for migration.Upon her arrival in the Netherlands, Malika started to look for new employment. At first she felt āhandicappedā for not being able to speak Dutch, and while she studied to learn the language, she found a small, freelance job. Malika also did all of the housework, while Martin worked long hours in his business. As Malika felt marriage is all about sharing, she freely spent her savings from selling her Moroccan property on the communal household. Her freelance work brought only very little money. Martin tightly controlled his earnings from his successful business as he felt Malika should take responsibility for paying for her and her daughterās upkeep.The marriage was not a happy one. In fights Martin regularly told Malika to pack up and go back to Morocco, and after a while he became abusive. Malika did not know he was serious about divorce until she received a letter from his lawyer, just before she would have been living in the Netherlands long enough to be entitled to an independent residence permit. At the moment of the interview, Malika and Martin were entangled in a series of court cases involving property and maintenance disputes. Malika felt that, as a Moroccan migrant, she was less likely to be believed by the Dutch authorities and court than Martin. After finishing the Dutch divorce Malika aimed to arrange the Moroccan divorce as soon as possible, as their marriage was still registered there. This means she would probably have had to start another divorce case in Morocco.
Malikaās story illustrates how transnational families may get into contact with multiple state legal systems. While the interactions of transnational families with migration law have been extensively studied, the role of family law in transnational family life has so far gained only limited academic attention, despite its importance for the everyday life of transnational families. Most major life events, such as marriage, birth, and death have a legal dimension. While this legal dimension tends to remain almost invisible in the absence of conflict, in transnational family life state intervention is often more pronounced. Matters like establishing parenthood and custody over a child, proving a marriage, or claiming an inheritance can take years of complicated work while dealing with multiple and interacting state bureaucracies. Due to the interconnectedness of migration law and family law (van Walsum 2008), family law can be especially important for transnational families, as even the possibility of living together in the same country can depend on the legal validity of family ties.
Spouses in transnational marriages can be married in one legal system and divorced under another, exploit differences between the legal systems, or arrange everything locally in their country of residence. The considerable differences, as well as unexpected similarities, in marriage and divorce regulations between the Netherlands, Morocco, and Egypt may create all kinds of problems for members of transnational families as well as possibilities for strategic action, especially during divorce. In Malika and Martinās marriage, control over money was a problematic issue. During the divorce process of Martin and Malika, these conflicts translated into a legal conflict over the applicable marital property regime. Martin thought Moroccan family law should be applicable to their marriage, as he married Malika in Morocco. This means that all property would remain separated and that he could simply put Malika out of the marital home, which he owned. Malika, having spent all her savings on the communal householdāwhile in Moroccan family law Martin would have been responsible for maintaining herāthen would return to Morocco penniless. During the court case, Malikaās lawyer argued that Dutch marital property law should be applicable, as the Netherlands was their first country of communal residence. In a Dutch marital property regime, all property and debts are considered to be communal. This would mean that Malika would get half of all Martinās property, including a share of his business and the marital home. Moreover, Martin would have to pay maintenance to Malika. If Moroccan law would be applied to their divorce and marital property, Malika would have gotten the worst of the differences between the two legal systems, having no claim to Martinās property, while having spent her own property on household costs Martin should have paid.
In addition to analysing disputes relating to divorce, this research project aims to study the meaning and working of family law in the everyday life of transnational families. For this purpose, I will draw on the work of Merry (1986, 1990) and Ewick and Silbey (1998). Ewick and Silbey have studied law in everyday life by looking at breaches from normal routine. Divorce is therefore a good opportunity to observe the working and meaning of family law in daily life. It was not until the moment of divorce that Malika and Martin reframed their conflicts about money in expectations based on family law. Even though marital property law is already applicable during the marriage, the legal ownership of Martinās business and home and Malikaās savings only became relevant at the moment of divorce. This redefinition of daily life in legal terms at the moment of divorce can be shocking for the people involved.
Gender, ethnicity, and social class can be important factors contributing to the way partners experience and narrate marriage and divorce (Walzer and Oles 2003; Hopper 2001). In custody disputes, both parents can get the impression that law is gender-biased to the advantage of the other party (Kaganas and Day-Sclater 2004). In transnational marriages, religion and conceptions of religious and cultural differences can also play a role. During the legal process, one partner may find a recognition of rights that they had not experienced before, while the other may feel deprived, based on perceived power relations during the marriage (Merry 2003).
Transnational Marriage and Divorce
Literature on transnational marriages tends to be either on mixed marriages, marriages between partners from different ethnic backgrounds, or on marriages of migrants with a partner from their country of origin, so-called migration marriages. What is seen as a mixed marriage depends on the context and the perceived distance between the partners. In the Dutch context, mainly marriages between partners of different ethnic backgrounds tend to be seen as mixed. Whereas until the 1970s the term mixed marriages was mostly used to describe marriages between persons of different Christian denominations (Hondius 1999), religious differences are nowadays connected to and regarded as a part of ethnicity or culture. Marriages between partners of the same ethnic background but with different religions are unlikely to be seen as mixed. Similarly, because of this focus on ethnicity and culture, marriages ofāsecond-generationāmigrants with partners from their country of origin are seldom seen as mixed marriages, even though the spouses have been raised in different countries. This research combines both groups, using the term transnational marriages.
The empirical literature on transnational marriages seems to be focused mostly on the beginning of the transnational relationship. Research on later stages of the relationship is far more limited, and consists mostly of life stories of migrant women (Rozema 2005; van der Zwaard 2008; Walby 2010; Luyckx 2000; Buitelaar 2000) and intercultural communication in mixed marriages (Speelman 1993, 2001; Ask 2006; Hondius 1999; Waldis 1998, 2006; Waldis and Byron 2006).
A main issue in research on mixed marriages is the explanation or description of the coming about of the marriage. Some authors try to find explanations in circumstances. According to Bacas, for example, socio-economic processes contributed to the possibility of transnational mixed relationships. Globalised markets, modernised transport, and communication systems together with a growing tourist industry offer more and better opportunities for cross-border contacts. Furthermore, because of processes of individualisation in Western Europe, women have fewer constraints placed on them with regard to marriage choices (Bacas 2002). Transnational marriages of migrant minorities are often interpreted in terms of integration. Whereas mixed marriages between migrants and the native population of a country are often seen as a sign of and contributor to the integration of ethnic minorities, marriages with partners from the country of origin are seen as problematic and as a sign of poor integration (de Hart 2003; van der Zwaard 2008; Sterckx 2014). In addition to the explanation for migration marriages being a lack of integration in the new country of residence, a second explanation for the high number of transnational marriages with partners from the country of origin by some groups of migrants is marriage as a strategy to obtain sought-after legal residence in a European country. This explanation is especially popular among policymakers. According to Charsley (2005), this factor does play a role in explaining the very high number of cousin marriages in transnational marriages of Pakistani people in the UK. A possibility of migration can be seen as capital that needs to be kept in the family. However, strategic interests are not the only reason. Pakistani parents also try to limit the ri...