Qualification of Islamic marriage gift in private international law of European countries

Abstract

In the Muslim Law exists the specific institution of Muslim law, the Mahr. This is either a sum of money or another estate, which the husband has to pay to his wife in part at the moment of celebration of a marriage and in part at ending a marriage. If the spouses, who have lived in an Islamic country and who have celebrated their marriage there, after a while relocate in Europe, then arises the question as to whether the wife is entitled to claim the part of the Mahr which was not paid at the moment of celebration of a marriage. Because in the European countries on the ground of the European Union Matrimonial Property Regulation 2016 to the matrimonial property, i. e. to the property relationships between the spouses shall be applicable the law of the country where the spouses were living at the moment of celebration of a marriage, then, if the Mahr will be regarded as the element of the matrimonial property, the wife can claim the Mahr referring to the Islamic law. Nevertheless, if the Mahr is either the element of the personal non-property relationships between the spouses or the maintenance right, then to these rights is applicable another choice of law-rule which refers to the law of last common habitual residence of the spouses or to the law of the actual habitual residence of the the wife, and this law is the law of an European country where the Mahr is not provided. Consequently, the conflict of characterization of the Mahr has to be decided for purposes to define the one or the other applicable choice of law-rule. Based on the results of the analysis of the theories proposed to classify the Mahr is preferred the characterization of the Mahr as the matrimonial property. Nevertheless, the political-legal decision made by the Supreme Court of Germany in 2009 is keeping in mind, according to which the Mahr has to be classified as the general effect of the marriage with a purpose to exclude for the wife the possibility to claim the Mahr in a court of an European country.