Cultural Diversity in Family Law

1. 1 Cultural Diversity in Family Law Pluralisation of family forms and the opening up of family law Rapid changes of family forms and values in Europe in the past decades due to individualisation New emphasis on traditional family structures due to migration Proliferation of differences and the diminishing meaning of family law � Boundaries between the private and the public sphere have to be revised

2. 2 International Private Law Conflict of laws rules Which law is applicable in family disputes involving foreign nationals? Nationality or domicile as possible determining factors

3. 3 International Private Law Nationality-based jurisdiction  In several European countries the jurisdiction that applies to many family issues is determined by the nationality of the person concerned Critique: Cultural affinity between the individual and the nation granting nationality is not necessarily given People are not permitted to benefit from the possibly more favourable provisions of the European code It is contrary to the doctrine of integration Courts are not trained. This implies that law is an idiopathic manifestation Today: erosion of nationality-based international private family law and more party autonomy

4. 4 International Private Law Applicable law based on domicile In few countries in Europe is domicile the preponderant factor determining applicable law Problem of non-recognition by the countries of origin But: viable starting point for discussion about accommodation of cultural diversity

5. 5 International Private Law Ordre public and self affirmation � alien tradition and own morality The ordre public limits the applicability of Islamic law and the recognition of legal decisions handed down in other countries If the result (and not the foreign legal system itself) contravenes fundamental principles of our system of laws and values

6. 6 International Private Law Ordre public The protection of personal integrity rights (Child marriages, forced marriages)

7. 7 International Private Law Ordre public The protection of Western family law dogma (Polygamy, temporary marriage)

8. 8 International Private Law Ordre public To justify the primacy of a country�s own legal system (Custody, grounds for divorce, proxy marriage) Claim: Reluctance to apply ordre public- considerations

9. 9 International Private Law Summing up Nationality is not the appropriate determining factor in international family law. Performative act engaging in the binary logic of the self and that which is other Conflict-of-laws rules are structurally unable to protect cultural identity

10. 10 Substantive Family Law Narratives on the equality of differences Narrative norms, commitments to cultural diversity Justification of actions and decisions, reflection and disclosure of the decision parameters used and the cultural imperatives applied by those determining the case

11. 11 Substantive Family Law General clauses and the balance of interests Examples: Extraordinary circumstances for granting visiting rights to third parties Assessment of forced marriage Continuation of a marriage as intolerable hardship Nullity of marriage because of fraud

12. 12 Substantive Family Law Child�s best interest Decisions relating to the child must be made in the child�s best interest A child has his own right to cultural and religious identity Cultural and religious considerations are played out in the tri-polar arena of the child�s needs, the autonomy of the parents and the state�s obligation to protect the child Different perceptions of child wellbeing

13. 13 Substantive Family Law Integration and reception of Islamic family law Example: mahr � dowry Indispensable part of every Islamic marriage Very common among Muslims in Europe as well Contractual obligation and the trust placed in this obligation deserves the protection of the law in the European legal context

14. 14 Substantive Family Law Cultural variants of family law institutions Example: Child guardianship: Spain introduced kafala

15. 15 Substantive Family Law Scope and limitations Territorial uniform law; avoids abstraction and seeks to find justice in individual cases Overall picture: eclectic process

16. 16 Legal Pluralism Normative dimensions of pluralistic social structures Evidence that European systems of family law do not accord sufficient representation to certain interests Migrants reconstruct their own legal worlds in the diaspora

17. 17 Legal Pluralism Concepts of legal pluralism Presence of more that one legal order in the same social field Legal pluralism in cultural anthropology: normative orders evolve in the social planes of human communities Transplanted law through large-scale migration

18. 18 Legal Pluralism Ethnographic evidence and entangled histories Persons domiciled in England are subject to English family law. The family lives of many Muslims are in fact determined by unofficial Islamic law Islamic Sharia Councils: Jurisdictional authority within the Muslim community; Muslim women asking for divorce Since 2002: Divorce (of religious marriages) Act 2002, English courts can require religious dissolution of marriage Reconstruction of Islamic law: �angrezi shariat�

19. 19 Legal Pluralism Traditions of legal pluralism in family law Arguments for the right of religious communities to formulate their own Family law codes: In former colonies, Muslims were and still are governed by their own religious family laws Muslims are duty-bound to follow the precepts of sharia Unofficial Islamic law causes tensions and uncertainty

20. 20 Legal Pluralism Dangers of parallel legal structures Diversified communities and legal concepts � who would decide? Coherence and cohesion under threat The uniform rule of law, and the twin principles that the state and only the state has the authority to promulgate law and that the law is equally applicable to all, are essential attributes of the modern state

21. 21 Legal Pluralism Dangers posed by collective rights Family rights are formulated with reference to the individual Paradox of multicultural vulnerability; group rights reinforce authoritarian structures Private and public spheres: in a legally pluralistic system of family law favouring group autonomy, the private sphere of the individual and that of the group are concentric. Burden of conflict between group affiliation and personal freedom placed on the individual concerned Human rights at stake

22. 22 Discourse and Procedure Solving the culture-or-rights conundrum Protecting choice and promoting inclusion Away from thinking based on regulatory policy and institutions towards a view in which discourse and process play the key roles

23. 23 Discourse and Procedure The outer framework: Human rights and the constitution Show increasing convergence in values Core convictions not negotiable

24. 24 Discourse and Procedure The inner framework: the tasks of family law Autonomy and protection Economic area: ensuring equitable sharing Personal sphere: protection of the integrity, the rights and the network of children Core of Family law: supporting parties and assisting them in using the freedom of action they enjoy responsibly Legal process should be organised, accompanied and safeguarded

25. 25 Discourse and procedure Projects Arbitration � Canadian efforts �Culture-open� procedures Freedom in the form of the marriage ceremony Divorce: Integration of �foreign� rituals; inclusion of relatives to negotiate the consequences of divorce; court decision necessary? Contracts Child protection: procedural mediation, participative processes, use of community resources, respect for cultural differences without culturalising and without permitting culture to be used as a strategic resource

26. 26 Discourse and Procedure Prospects for discourse-based and procedural integration Is much of a piece with the de-institutionalisation and contractualisation of family law seen in recent decades in Europe. Narrowly prescriptive family law models require particular justification.

27. 27 Discourse and Procedure Islamic family law: pronounced contractual character and inherently suited to reform Opposed to an existentialised concept of culture Law develops its content, its meaning and its effect only in a given cultural context Protects the self-interpretation of cultural imperatives

28. 28 Discourse and Procedure For autonomy to be substantive it must enable the individual to choose between various options without coercion Institutional and procedural guarantees necessary Individual and collective identities closely interwoven and individual identity can be stabilised only in the context of the social network

29. 29 Discourse and Procedure �In a way, our situation is very special,�difficult,�unique. We are not bound by one law, one single system of rules but by plural, multiple ones. See, for example, in case of divorce, British law, it allows me to keep the custody of my children. I can get half of what I worked for. Just like that, half of it is mine. But then if I go with that, it is not God�s law, you know�. Unless I get approved by an Islamic court, I am not divorced. I cannot remarry. Nobody in the community considers me a woman without a husband. Even me myself. But if I go first to British law, then my husband will not give me a divorce, our relationship will be sour, even worse, and the Imam, he will be angry too. He will say I did not accept his authority, did not come to him first. Very difficult. No matter that you believe in your rights, you know. I believe I have a right to half of everything we did together, but I cannot just do it with just one law. You have to walk a fine line between the two legal systems and never annoy any of them, too. And sometimes it is not even the two: British law and sharia see that? There is also, also tradition, your tradition, the rules your tradition puts� You cannot ignore them, especially not as a woman.�