A 'private' divorce issued by a religious court in a third country on the basis of a unilateral application by one spouse does not come under the 'Rome III' regulation, the Court of Justice of the EU confirmed in a judgment returned on Wednesday 20 December (C-372/16), confirming the conclusions of the Advocate General (see EUROPE 11864).
Mr Raja Mamisch and Ms Soha Sahyouni, both of whom are German-Syrian nationals, married in Syria and currently live in Germany. In 2013, by request of Mamisch, the Sharia Court of Lakatia (Syria) issued their divorce. This is considered a 'private' divorce, as it was not issued by public authority. Sahyouni challenged the recognition of the divorce by the superior regional court in Munich before the German courts.
The 'Rome III' regulation (1259/2010) implements reinforced cooperation between 16-member states in the field of the law applicable to divorce (see EUROPE 10281).
In its judgment, the Court points out that it ruled in 2015 (judgment C-281/15) that the 'Rome III' regulation does not apply to the recognition of a divorce decision returned in a third country. It also considers that the regulation covers only divorces issued either by a state jurisdiction, or by a public authority. The divorce resulting from a unilateral statement of one of the spouses before a religious court does not therefore come under 'Rome III', it stresses.
Since the adoption of 'Rome III', several member states have introduced to their legal orders the possibility of issuing divorces without state authority involvement. However, according to the European judges, the inclusion of 'private' divorces in the scope of application of this regulation requires arrangements that come under the sole competence of the EU legislator. (Original version in French by Mathieu Bion)