IES Lecture Series: "The Personal Law of Muslims in Europe: Which Law Applies?"

22 Mar 2007 18:00
22 Mar 2007 20:00

KUL’s Marie-Claire Foblets at IES Lecture Series

IES Lecture Series on European Identity: "The Personal Law of Muslims in Europe:  Which Law Applies?" Lecture by Prof. Marie-Claire Foblets, Katholieke Universiteit Leuven. Aula E.0.04

For the 6th lecture in the current series on European Identity, IES welcomed the lawyer and anthropologist Professor Marie-Claire Foblets on March 22nd 2007. Professor Foblets is extremely well-known and widely published on migration issues and has the advantage of straddling two or more disciplines which in this field is an essential ingredient to understanding complex family issues. She delivered a fascinating and very clear lecture on the private international law aspects of Islamic personal law especially in the area of marriage and divorce where there appear to be numerous conflicts in the practice authorised by the law in Islamic countries and the practice in EU Member States. The complexity and implications of this conflict of laws even outside the strictly legal sphere are considerable amplified by the fact that there are naturally differences in the legal systems of both European countries and Islamic countries even though the latter are largely guided by Sharia legal principles. The permutations are thus enormous and compounded by the increased mobility of people around the Mediterranean Basin.

Professor Foblets explained that even after 40 or more years living in Europe, North African migrants, for example, retain close ties with their countries of origin. Thus it is very common for them to return home to marry or indeed divorce. Thus the question is immediately posed as to which law governs the marriage or its dissolution. A young man from a Muslim background can return to the family’s country of origin and marry a girl who is considered by European law to be under age for marriage. If they return to Europe, is the marriage valid? Is polygamy, permitted in certain Islamic countries under strict conditions of consent and equality by the original wife or wives, a valid marriage in a European state? Is divorce by the husband by simple repudiation a valid divorce in Europe? And how far are European legislators and courts prepared to “bend” human rights principles to accommodate Islamic practice. The solutions to these issues are far from simple and affect the personal lives of immigrants very deeply. Hence they have social implications wider than just legal principles. This often leaves what Professor Foblets calls “a limping legal situation”, that is legal uncertainty and flowing from that uncertainty governing peoples’ personal relationships.

European jurisdictions have taken differing approaches to solving these dilemmas although they are not always clear cut. The first and perhaps simplest solution is to negotiate bilateral treaties with the countries of origin. These arrangements can also be multilateral as in the Hague Convention on kidnapping. But such conventions can, according to Professor Foblets, be very difficult to enforce in practice.

Another option is to apply the law of domicile. However, nothing guarantees that the country of origin will respect this and young girls can find themselves “married off” a second time.

Some courts consider that the judge should decide in the best interests of or the least risks to the parties or apply “the autonomy of the will”, that is let the parties largely decide for themselves. The weakness of the first of these principles is that it creates uncertainty; and the difficulty of the second is that in strained personal situations, people may not know what they want.

Professor Foblets described another way of dealing with such issues which is “the solution of best certainty” which either leads to bilateral conventions or explicit recognition of the other countries’ courts decisions. This is a workable solution but only if you can trust the legal system of the country in question. European countries will tend to apply a safeguard procedure in that they will accept the country of origin courts’ decision but only if it does not clash with public law or order and this provision can be widely and variously interpreted.

Professor Foblets ended her presentation with a description of the positions taken in various European countries on these issues. France, for example, takes a strict interpretation of human rights and gender equality; the Dutch have codified their law and essentially the law of the husband applies provided the wife consents. The problem then arises as to what is “consent” in these circumstances?

The lecture was a fascinating insight into an area of law that affects the lives of thousands of immigrants into the EU Member States and an admirable display of lucidity on a complex topic.