Migration and Family Law in Europe: Between “Public Policy”, Human Rights and Gender Equality

Migration to Europe poses new legal problems especially for countries, such as Italy, Germany, or Spain, without the longer colonial and then migratory history of France or Great Britain. Given that many migrants come from Muslim countries of Africa or Asia, as a result of private international law’s rules, more and more often European courts have to apply Islamic family and succession law, and so they have to determine whether its application is incompatible with “public policy” (i.e. the fundamental principles of domestic law), especially whether it would constitute a violation against human rights. In a recent decision (December 19, 2018), the European Court of Human Rights, dealing with a peculiar Greek case, not directly connected with migration, has opined that the application of Shariah’s inheritance rules, but only if made on a voluntary basis, is not in itself unacceptable. The question is how to balance the respect for migrants’ cultural and religious identity with the domestic system of values. It is a complex and quite uncertain evaluation, also because the domestic model of family is deeply changed, developing from the traditional one towards pluralism and gender equality. Therefore, some old judicial trends have now to be revised, changing the outcomes or at least their motivations, as the problematic examples of polygamy and talaq (repudiation) can show. Indeed, after the approval of laws on same-sex marriages or registered partnerships, some representatives of European Islamic communities asked: and so why not polygamy? However, it is still possible to say that polygyny contrasts with public policy, even in a context of family pluralism, if we consider gender equality principle, because such an institution is unbalanced in favour of the husband. But, if this is the new motivation, it implies that in particular cases some effects of those marriages have to be recognised: otherwise, precisely the women would be unjustly harmed by the denial of their rights to, e.g., an inheritance share. Today in many European countries it is possible to perform an uncontested divorce through a private act: therefore, judicial intervention in divorce is no more a public policy issue. On the other hand, we can still say that Islamic repudiation, being a unilateral power of the husband, contrasts with public policy, referring again to gender equality principle. But, also in this case, such a new approach may change the possible concrete outcomes, and, e.g., we will have to recognize to the repudiated wife the right to ask the recognition of the repudiation, in order to be free to marry again, or in order to claim for the payments due as a consequence of the divorce.