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Europäischer Gerichtshof
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EU laws do not cover sharia divorce

December 20, 2017

A couple with dual Syrian and German citizenship that divorced in Syria cannot have their divorce validated under EU law. The divorce was carried out in a religious court in October 2013.


The European Union's highest court on Wednesday ruled that the EU cannot determine the validity of private divorces settled under Islamic sharia law, following a case brought forward by two Syrians living in Germany.

The Court of Justice found that regulation covered only divorces that were pronounced by a national court or under the supervision of a public authority, and a divorce that resulted from a unilateral declaration from one spouse before a religious court, such as the case involved, did not come within the scope of the Rome III Regulation.

The Rome III Regulation, or the European Union Divorce Law Pact, is a regulation concerning the applicable law regarding divorce valid in 16 countries. It dictates which law should be used in cross-border divorces.

Read more: European Court of Justice to rule on legality of Sharia divorce

The couple who brought about the ruling, Raja Mamisch and Soha Sahyouni, was married in 1999 in Syria and both hold dual Syrian and German citizenship.

In 2013, Mamisch dissolved his marriage by having a representative pronounce the divorce formula before the religious sharia court in Latakia, Syria. His wife Sahyouni then signed a declaration in which she acknowledged she had received all payments which, according to religious law, were due to her under the marriage contract and from the unilateral divorce of her husband. The declaration released Mamisch from all his obligations towards Sahyouni.

But, despite the religious court declaring the couple divorced, it was considered "private" due to being based on the husband's declaration of intent only.

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On 30 October, 2013, Mamisch went to the Munich Higher Regional Court to have the divorce pronounced in Syria recognized in Germany.

This was approved but, in February 2014, Sahyouni applied to have the decision set aside and a declaration made that the conditions for the recognition of the divorce were not satisfied.

The president of the Munich Higher Regional Court rejected Sahyouni's claim in April 2014, on the grounds that the divorce was governed by the Rome III Regulation, which also applies to private divorces.

Read more: 'Islam is in a transformative process'

"In the absence of a valid choice of applicable law and a common habitual residence of the spouses in the year preceding the divorce, the applicable law is determined in accordance with Article 8(c) of that regulation. Where both spouses have dual nationality, the decisive factor is their effective nationality within the meaning of national law. At the time of the divorce at issue, their effective nationality was Syrian," the court said.

The couple lived in Germany until 2003, and then moved to Homs in Syria. In summer 2011, due to the civil war in Syria, they returned to Germany for a short time then from February 2012 lived alternately in Kuwait and Lebanon. During that time they also stayed in Syria on a number of occasions.

Read more: Opinion: Stop the 'Sharia police' together with Germany's Muslims

Following the rejection of Sahyouni's claim, the Munich Higher Regional Court submitted a number of questions to the Court of Justice concerning the interpretation of the Rome III Regulation.

Following the Court of Justice's ruiling that the EU cannot have a say on private divorces settled under sharia law, the case will now be taken back to the Munich court yet again.

law/ (AP, dpa)

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