The Recognition of Religious Private Divorces in Europe: From Conflict of Laws to Conflict of Cultures?

Abstract

THE APPLICATION OF RELIGIOUS LAW AS A CONSEQUENCE OF PRIVATE INTERNATIONAL LAW In Puccini's opera Madame Butterfly , the protagonist argues that Japanese divorce law does not apply to her marriage, since she married a US citizen. She therefore does not consider herself to be available for marriage after her husband abandoned her. Which law is applicable to situations involving international elements is determined by rules on the conflict of laws. These rules foresee relevant connecting factors, such as the habitual residence, domicile or nationality of the persons concerned in order to determine the law that is most closely connected to the pertinent legal question. Von Savigny refers to the seat ( Sitz ) or home ( Heimat ) of a legal relation. Conflict of law rules can thus in principle lead to the application of every legal order worldwide. It is one of the fundamental principles of private international law that all legal systems are considered equal. The application of conflict of law rules is termed a ‘leap into the unknown’. The applicable law is selected independently of political considerations or policy objectives by means of an abstract and policy-neutral reference system. It can thus be said that the rules on the conflict of laws are apolitical in nature. However, Von Savigny saw the principle of the equality of all legal systems as strongly related to Christianity as a unifying element, more specifically as a common bond of spiritual life embracing the most diverse nations and casting their characteristic differences more and more into the background. His understanding excludes legal orders based on the Jewish faith, Islam and nonmonotheistic religions. While the rules on the conflict of laws generally refer to legal orders of territorial nation states, they also respect the state's decision to declare subsets of rules to be applicable, for instance bodies of regional or religious law. Especially in matters relating to the family, the concerned individuals’ religious affiliation is oft en deemed relevant. The application of religious law, most often ‘Islamic law’, in European countries has therefore habitually been the result of conflict of laws mechanisms. It is by no means a new occurrence.