EU recognition of sharia divorce decrees: Sahyouni

Advocate General Henrik Saugmandsgaard Øe has issued his Opinion on a request for a preliminary ruling from the Oberlandesgericht München (Higher Regional Court of Munich) on the interpretation of Council Regulation (EU) No 1259/2010 of 20 December 2010 implementing enhanced cooperation in the scope of the law applicable to divorce and legal separation. The case concerns recognition in Germany of a divorce decision adopted by a religious body in Syria [1 & 2].

In Sahyouni v Raja Mamisch (Advocate General’s opinion) [2017] EUECJ C‑372/16, the first question was whether Regulation No 1259/2010 applied to divorces characterized as ‘private’, in that they are not based on a decision by a court or other public authority, but on a declaration by the spouses, unilaterally or mutually, possibly with the purely declarative assistance of a foreign authority. Alternatively, Article 10 of the Regulation makes it possible to substitute the law of the forum for the law which should in principle apply where that law discriminates between the spouses of their sex; and the Munich Court asked whether the assessment of the existence of such a discriminatory effect had to be carried out in abstracto or in concreto. In the event that such an assessment was to be made in the light of the circumstances of the case, the ECJ would then have to determine whether the consent to the divorce, if any, given by the spouse who was discriminated against made it possible to apply a discriminatory foreign law [4 & 5].

Mr Raja Mamisch and Mrs Soha Sahyouni were married in 1999, in the jurisdiction of the Islamic court in Homs (Syria). Both have dual Syrian and German nationality [19]. In May 2013, Mr Mamisch divorced his wife before the sharia court in Latakia, Syria [20]. Mrs Sahyouni made a signed declaration of the receipt of benefits payable under religious law of 20,000 US dollars, as follows: “… I received all the benefits due to me under the marriage contract and the unilateral divorce and thus release him from all his obligations to me under the marriage contract and divorce order No. 1276 of 20 May 2013 rendered by the Latakia Sharia Court … ” [21]. In November 2013, the President of the Munich Regional High Court upheld Mr Mamisch’s application for recognition, holding that the legal conditions for the recognition of the divorce decision had been met [22].

In February 2014, Mrs Sahyouni applied for the annulment of that decision and a declaration that the conditions for recognition of the divorce decision in question were not satisfied [23]; however, her application was dismissed [24]. The Court ruled that recognition of the divorce decision in question was governed by Regulation No 1259/2010, which would also apply to private divorces. In the absence of a valid choice of the applicable law and habitual common residence of the spouses during the year preceding the divorce, the applicable law should be determined in accordance with the provisions of Article 8 (c) of Regulation No 1259/2010. Where both spouses possessed dual nationality, the decisive criterion would be actual nationality within the meaning of German law which, at the date of the divorce in question, would have been Syrian nationality [24]. Moreover, public policy within the meaning of Article 12 of Regulation No 1259/2010 would not preclude the recognition of the decision in Syria, because Mrs Sahyouni had accepted the form of the divorce when she declared her acceptance of the subsequent benefits and, notwithstanding any possible discrimination, Article 10 of the Regulation would not preclude recognition in those circumstances [24]. Mrs Sahyouni appealed; and the Munich Regional Court) referred the matter to the Court of Justice for a preliminary ruling on the interpretation of Regulation No 1259/2010 [25].

Advocate General Øe proposed the following answers to the questions submitted by the Munich Regional Court:

“1. The provisions of Council Regulation (EU) No 1259/2010 of 20 December 2010 on the implementation of enhanced cooperation in the field of the law applicable to the divorce and separation without dissolution of the marriage – in particular Article 1, that decisions which are not made by a court or by another state authority without a constitutive decision, such as a declaration made by a spouse by a religious court – do not fall within the scope of this Regulation.

  1. In the event that the Court should rule that such private decisions do fall within the scope of Regulation No 1259/2010, Article 10 should be interpreted as meaning that the law of the State of the court seised is to be applied where the foreign law referred to in Articles 5 or 8 of that Regulation results in an abstract discrimination on grounds of the sex of the spouses and, secondly, the fact that the spouse discriminated against may have entered into the prohibition is irrelevant to the applicability of that Article.”

In short, AG Øe argues for non-recognition.

The AG’s opinion is not yet available in English. See also: Deutsche Welle: European Court of Justice to rule on legality of Sharia divorce.

Cite this article as: Frank Cranmer, "EU recognition of sharia divorce decrees: Sahyouni" in Law & Religion UK, 18 September 2017,

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