Friday, 3 August 2018

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.


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 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.


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.