No recognition of an Egyptian talaq on public policy grounds
A talaq divorce is rarely knocking at
the door of Greek courts. A court in Thessaloniki dismissed the application for
the recognition of an Egyptian talaq, invoking the public policy clause,
despite the fact
that the application was filed by the wife.
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THE FACTS
E, an
Egyptian man, and G, a Greek woman, concluded a civil wedding in Cairo end
December 2015, in accordance with domestic law. The spouses were residents of
Cairo. On June 1, 2016, E divorced his wife before a notary public in Cairo. November
2016 G filed an application for the recognition of the talaq before the
Thessaloniki Court of first Instance. In her application she stated being a
resident of Thessaloniki. In the first hearing, the court ordered stay of
proceedings, in order for G to produce evidence that the 3-month idda period has lapsed, and no revocation
of the husband’s intention to divorce occurred [Thessaloniki CFI, judgment 5.5.2017,
unreported]. In the second hearing, the court dismissed the application [Thessaloniki
CFI, judgment 19.12.2017, unreported].
THE JUDGMENT
The reasoning of the judgment was
the following: A divorce by repudiation is totally alien to the Greek legal
order. It is contrary to Art. 8 & 14 ECHR, and Art. 5 of the 7th Additional
Protocol to the ECHR. It then referred to two decisions of the European Court
of Human Rights (case Markin v Russia,
22.03.2012 & S.A.S. v France,
01.07.2014). The court mentioned also Resolution nr. 1743 (2010) of the
Parliamentary Assembly of the Council of Europe, on Islam, Islamism and
Islamophobia in Europe. It invoked Art. 20.1 of the Greek Constitution (right
to audience) in conjunction with Art. 6.1 ECHR. Finally, it supported its ruling
on Art. 2.1 of the Greek Constitution, which protects the value of human being.
The court made additional reference to the tendency of many jurisdictions to
abolish the dissolution of marriage by talaq, and stated as an example the
ruling of the Supreme Court of India, which declared talaq as unconstitutional.
The fact that the application was filed by G was no reason to decide in favour of
recognition: Solely the recognition of such an act would cause profound
disturbance to the Greek legal order, if its effects are to be extended and
applied in Greece on the basis of the Egyptian applicable rules.
COMMENTS
Before dealing with the outcome of the judgment, some brief
remarks should be made in regards to the first judgment: the court found no
public policy violation, given that it was G who filed an application for the
recognition of the Egyptian talaq. At the same time, the unilateral nature of
the talaq wasn’t reason enough to refuse recognition, due to Art. 323 nr. 3
Greek Code of Civil Procedure [CCP], which reads as follows: Subject to the provisions
of international conventions, a judgment of a foreign civil court is given res iudicata effect
in Greece without any proceedings, if …
3) the losing party has not been
deprived of its right of defence and generally its right to participate in the
proceedings, unless it has enjoyed equal opportunities to nationals of the
country, whose court rendered the judgment. In other words, there was no discrimination against G, given
that repudiation would take place in exactly the same manner with respect to an
Egyptian wife.
Coming back to the second judgment, it needs to be clarified
that the court had the powers to revoke the first decision ex officio pursuant
to Art. 309 CCP [revocation of interlocutory decisions]. Obviously the court
was not convinced with the reasoning of the first judgment, which was actually founded
on two significant references to Greek legal authority (Prof. Tsouka & Prof. Vrellis). Instead, the court followed verbatim
an old ruling of the Athens Court of Appeal (nr. 10179/1995, reported in
Hellenic Justice 1997, pp. 638 et seq., non-recognition of a Sudanese talaq), especially
on the issue that I wish to highlight, i.e. the initiative of G to apply for
recognition. There are two counterarguments I would like to bring forward.
i. There
is strong supporting evidence emanating from various EU jurisdictions, that the
public policy clause may not be invoked if there are clear indications that the
wife consents to the divorce. Many scholars in Europe (e.g. Germany, France, Italy,
Austria, Spain, the Netherlands, Norway, Switzerland) consider that the application
made by the spouse is clear-cut evidence of consent. Special reference deserves
a passage from Prof. Andrae [Internationales
Familienrecht, 3rd ed. 2014, pp. 347 et seq, nr. 175], who
unambiguously separates the abstract incompatibility of foreign law with
domestic values, from the result of the recognition in the specific case.
ii.
The
ruling of the court perpetuates the phenomenon of limping marriages. What’s
worse, it forces the spouse to restart litigation in the country of destination,
which is a heavy duty with plenty of costs and an insecure result. In the case
at hand, G would have to file a divorce claim, which needs to be served to E’s
address in Cairo in accordance with the 1965 Hague Convention; the claim should
be translated; G has to convince the court that it has jurisdiction to hear the
case; G has to convince the court that Art. 8 (d) Brussels III Regulation
applies; she might also have to produce evidence on the Egyptian legislation, and
demonstrate its incompatibility with domestic public order. This is because
Greek courts have the tendency to apply national conflict of laws rules (Art.
14 in conjunction with Art. 16 Greek Civil Code), and a ground similar to that
of Art. 8 (d) Brussels III Regulation is not to be found there. Finally, in the
event of a positive outcome, G shall have to serve the judgment again to Cairo
(preferably with a translation attached), because only final judgments may be
registered in the Civil Registry books.