The European Court of Justice is reviewing whether a divorce granted by a Sharia court is still valid in Germany. Experts are warning against a general ban, as that could put women at a disadvantage.
On Thursday this week, Henrik Saugmandsgaard Øe, advocate general at the European Court of Justice, issued an opinion saying that a divorce under Sharia law should not be recognized. The Munich lawyer Stephan Lorenz calls this "madness" as he believes that it prevents the possibility of analyzing its validity in individual cases. The ECJ judgment is still pending; however, judges often follow such recommendations.
Unjust method, good outcome
The case at hand involves a couple from Syria with German nationality. They married in 1999 in Homs, Syria, before eventually moving to Germany. Four years ago in a Syrian Sharia court, the husband ended the marriage by repeating the word "talaq" ("I divorce you") three times. Usually, only men are permitted to divorce a spouse in this way. Women rarely have the same right.
In his opinion, Saugmandsgaard Øe made a recommendation on whether the European Union Divorce Law Pact, known as the Rome III Regulation, was applicable. This regulation governs the recognition of private divorces, meaning divorces that were not granted by a state court. According to the regulation, foreign law is not applied in European courts if men and women do not have equal power in divorce proceedings, as was the case for the Syrian couple.
Legal expert Lorenz is not taking issue with the Rome III regulation. But he maintains that the unequal treatment of women under Sharia law can sometimes work to a woman's advantage. "Let's take a wife who wants to get rid of her husband anyway but cannot divorce him: she is very happy when he finally says the triple talaq." In such a case, Sharia law brings about the desired result. "It may be an unjust method, but the outcome is good for the woman," Lorenz said.
Understanding Islamic law
Mathias Rohe, a professor of law at the University of Erlangen and director of the Erlangen Center for Islam and Law in Europe, can understand why many Germans are concerned about the recognition of Sharia law. "Many people have a one-sided understanding of Sharia law. There are problematic areas in traditional Sharia law, which allows corporal punishment for criminals; is patriarchal and does not recognize gender or religious equality. That is justifiably worrisome." However, Sharia law is much more than that. "It offers more room for interpretation," says Rohe. "By all means, it is possible to defend human rights on the basis of Islamic law."
Sharia is not enshrined in any concrete way, rather it is a construct of ideas found in the Islamic faith, says the expert on law and Islam. "We apply state law. In Egypt, Pakistan, Indonesia or other predominantly Muslim states, state law is based on Islamic legal concepts." Consequently, this is what should be known as the Islamic legal system. The term Sharia law is more simplistic, but it is also misleading, he said.
It is not unusual for Islamic laws to be applied in Germany. "We have rulings in the EU – partly in national laws – saying that the parties involved must marry according to the laws of their home country," says Rohe. For example, if a French couple marries in a German registry office, then they are married according to French law.
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When foreign laws are applied in Germany, their effect is subject to scrutiny, says Lorenz. "If it results in gross injustice and a violation of fundamental rights, we correct it. This has been standard practice in Germany for 100 years now." Even legal expert Mathias Rohe finds it problematic that the ECJ generally does not recognize Islamic divorces in Europe. If a woman is divorced in a manner that puts her at a disadvantage, the divorce is generally rejected. But if she is the one who applies for the divorce to be recognized – perhaps because she wants to remarry – and her Sharia divorce is no longer recognized "then we are punishing her twice," claims Rohe. "If the result of the general disadvantage proves to be advantageous for the affected person, then we allow it. But in other cases, we don't."
Ruling could further fan anti-Islam sentiment
There are two ways of dealing with this problem in Europe: either human rights are held up symbolically but end up harming those affected; or, the cases are dealt with individually. "And that is the right approach in a legal system that focuses on people," explains Rohe. Stephan Lorenz, can, nonetheless, understand the ECJ advocate general's assessment in times like these. "This is an election year. Europe is losing faith. If the ECJ now said, 'This is applicable; we will examine the individual cases,' then the headlines would read: ECJ says Sharia divorce is valid. And then I would not like to see how anti-Islam groups such as Pegida, AfD and the like would react."