Abstract
The purpose of this chapter is to provide a general overview of the recognition and enforcement of foreign judgments in matters relating to filiation. ‘Filiation’ is understood here in a broad sense. It covers in-wedlock, out-of-wedlock and adoptive filiations. The chapter reviews a number of cases relating to the recognition and enforcement of foreign filiation judgments reported in certain Arab countries, namely, Morocco, Tunisia and Lebanon. It discusses the likelihood of the reception of foreign filiation judgments in other Arab countries based on the general treatment of the matter in legal literature. The issue is also analysed in its general context of cross-border family dispute resolution in order to gain insight on the fate of foreign filiation judgments in Arab countries. The analysis reveals the existence of two opposing approaches to this issue. The first approach can be characterized as conservative as it remains faithful to the traditional domestic rules and religious values. It tends to be followed when foreign judgments are rendered in countries where the legal system is assumed to be fundamentally different from the national legal system. To this effect, it relies significantly on the public policy mechanism of PIL. The second approach relies more on a case-by-case approach that aims to accommodate family law regulation to modern needs.
Béligh Elbalti is associate professor at the Graduate School of Law and Politics at Osaka University.
Abbreviations used in this chapter: Bull. Civ. = Bulletin Civil de la Cour de Cassation – Civil; CA = Court of Appeal; CCCP = Code of Civil and Commercial Procedure; CCP = Code of Civil Procedure; CFI = Court of First Instance; COC = Code of Obligations and Contracts; CPIL = Code of Private International Law; EA = Execution Act; EFCJA = Enforcement of Foreign Court Judgments Act; EFJA = Enforcement of Foreign Judgments Act; FC = Family Code; PIL = Private international law; PSC = Personal Status Code; RJL = Revue de la jurisprudence et de la législation/Majallat al-Qaḍāʾ wa-l-Tashrīʿ; RSC = Review of the Supreme Court/Majallat al-Maḥkamat al-ʿUlyā; RTD = Revue tunisienne de droit/Al-Majallat al-Tūnisiyya li-l-Qānūn; SC = Supreme Court; UAE = United Arab Emirates.
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Notes
- 1.
Almost all Arab jurisdictions have their own network of bilateral conventions dealing with foreign judgments. Arab countries have also concluded a number of regional conventions. For a detailed list, see Elbalti 2018, pp 220–221. However, reference to such conventions will be made only when necessary.
- 2.
The recognition and enforcement of foreign judgments refers to the effects that foreign judgments can enjoy in States other than their State of origin. Recognition of foreign judgments means that matters already decided by a foreign court should be treated as conclusive, thus precluding the re-litigation of the claims anew. Enforcement, on the other hand, refers to the use of coercive powers in order to compel the judgment debtor to comply with the judgment.
- 3.
The recognition of a foreign judgment usually depends on its enforcement in Arab countries. The situation is slightly different in Lebanon and Tunisia due to the legislative acceptance of ‘recognition’ at least as far as the res judicata effect of personal status judgments is concerned. For Lebanon (Article 1012 CCP), see Gannagé 2010, no. 35; Najm 2015/2016, p 467. In Tunisia, the question is unclear (compare Article 482 COC with Articles 13, 14 and 16 CPIL) and contradictory judgments exist. However, there is a tendency in the courts’ practice to accept the de jure effect of foreign judgments even in the absence of an exequatur judgment. See for example in matters of custody of children born out of wedlock, the judgment of the Sousse CFI no. 1692 of 4 July 2011 (unpublished, on file with author).
- 4.
The use of terminology in Arabic literature is not always clear. The terms nasab and bunuwwa are often used interchangeably to mean ‘filiation’ as a generic concept that covers all types of filiation. In this case, the necessary distinctions will be made by adding distinctive terms: ‘legitimate’ for filiation in wedlock (nasab sharʿī/bunuwwa sharʿiyya); ‘illegitimate’ (nasab ghayr sharʿī/bunuwwa ghayr sharʿiyya) or ‘natural’ (nasab ṭabīʿī/bunuwwa ṭabīʿiyya) for filiation out of wedlock; and ‘adoptive’ (nasab or bunuwwa bi-tabannī) for filiation by adoption. However, in the legal terminology as inherited from Islamic jurisprudence (fiqh), nasab is used to refer to ‘legitimate filiation’ i.e. fatherhood in marriage in the sense that nasab will not be conferred nor recognized for children when their birth out of wedlock is established or asserted. In this sense, bunuwwa may be used as a broader concept than nasab i.e. as a generic concept covering both nasab (‘legitimate filiation’) and ‘illegitimate’ filiation (see for example, Articles 142, 144 and 148 of the Moroccan FC). Bunuwwa can also be used in a restrictive way to mean ‘illegitimate’ or ‘natural’ filiation only; this use is frequent in Tunisian legal literature.
- 5.
These are (in alphabetical order): Algeria, Bahrain, Djibouti, Egypt, Iraq, Jordan, Kuwait, Lebanon, Libya, Mauritania, Morocco, Oman, Palestine, Qatar, Saudi Arabia, Somalia, Sudan, Syria, Tunisia, Union of Comoros, United Arab Emirates and Yemen. Not included in this study is the law of other Islamic countries, such as Indonesia, Iran or Turkey.
- 6.
Namely, Djibouti, Somalia, Sudan and the Union of Comoros.
- 7.
There are, however, numerous reported cases on cross-border maintenance or custody.
- 8.
Algeria (Code of Civil and Administrative Procedure of 2008, Articles 605–608); Bahrain (CCCP of 1971, Articles 252–255); Egypt (CCP of 1968, Articles 296–301); Lebanon (CCP of 1983, Articles 1009–1024); Kuwait (CCCP of 1980, Articles 199–203); Libya (CCCP of 1953, Articles 405–411); Mauritania (Code of Civil, Commercial and Administrative Procedure of 1999, Articles 303–304); Oman (CCCP of 2002, Articles 352–355); Qatar (CCCP of 1990, Articles 379–383); Sudan (CCP of 1983, Articles 288–290); Syria (CCP of 2016, Articles 308–313); UAE (CCP of 1992, Articles 235–238) and Yemen (Code of Civil Procedure and Enforcement of 2002, Articles 491–497).
- 9.
Saudi Arabia (EA No. 53 of 2012, Articles 11–14) and Palestine (EA No. 23 of 2005, Articles 36–39).
- 10.
Iraq (EFCJA No. 30 of 1928) and Jordan (EFJA No. 8 of 1952).
- 11.
This is the case in Morocco, where, in addition to the general rules found in the CCP of 1974 (Articles 430–432), a special rule on the enforcement of foreign divorces and dissolution (faskh) of marriages is found in the FC (Article 28 FC). The same holds true for Jordan where, in addition to the general enforcement rules found in the EFJA No. 8 of 1952, special rules of enforcement before the Sharia courts have been enacted in law No. 10 of 2013.
- 12.
See for example Article 443 COC on the evidentiary weight of foreign judgments and Article 482 COC on their res judicata effect.
- 13.
However, the Act applies when the enforcement of the foreign judgment is subject to international conventions. See decision of the Federal Supreme Court no. 286/2017 of 17 October 2017, excerpt available at www.hjc.iq/qview.2389/ (accessed 15 February 2019). Otherwise, the regularity of the foreign judgment will be examined in the context of a new action during which the foreign judgment will be confirmed (taṣdīq) if it is deemed to be, inter alia, in conformity with the local legislation, namely the Iraqi FC.
- 14.
- 15.
See the explanatory note on this law available at www.jpm.jo/index.php?type=leg_respon&id=234 (accessed 15 February 2019). This does not, however, include agreements acknowledged by the foreign court. See decision of the Jordanian Sharia Supreme Court no. 24-2017/18 of 14 June 2017 (on file with author). But see contra, the decision of the Jordanian Supreme Court no. 3281/2005 of 20 December 2005 (on file with author).
- 16.
- 17.
Algeria, Morocco, Tunisia and Palestine are exceptions. The condition is, however, usually examined within the framework of procedural public policy.
- 18.
Algeria and Palestine are exceptions, but the condition is covered by procedural public policy.
- 19.
Iraq, Jordan and Morocco are exceptions, but the condition is covered by public policy.
- 20.
Algeria and Morocco are exceptions.
- 21.
Fraud is an independent requirement in Iraq, Jordan, Oman and Sudan. In Lebanon, fraud justifies a review of the foreign judgment on the merits. In Tunisia, fraud may act as an independent ground for non-recognition despite the absence of a statutory provision. See for example, CA Tunis no. 22715 of 22 February 2006 (unpublished), reported in Chedly and Ghazouani 2008, p 263.
- 22.
Applicable in Oman (Article 352 CCPC) and Sudan (Article 288 CCP).
- 23.
However, it is permissible in Lebanon, but only in limited situations (Article 015 CCP). Interestingly, despite the prohibition, it is not uncommon that Arab courts review the merits of the foreign judgment under the cover of public policy. For a representative example from Morocco, see the Moroccan SC no. 188 of 30 March 2005 (on file with author) in which the court examined the content of a foreign divorce judgment in the light of the Moroccan FC and declared, upon such examination, that the foreign judgment was not inconsistent with the Moroccan domestic law of divorce and was therefore not in violation of Moroccan public policy.
- 24.
See Elbalti 2018, pp 223 et seqq.
- 25.
- 26.
See Sect. 14.4.
- 27.
Decision of the Rabat CA (Morocco) no. 81 of 26 April 2004, file no. 147/2002/10 (unpublished), reported in Loukili 2012, pp 154–155.
- 28.
The facts of the case are based on the overview provided by Zeidguy 2007, pp 265–267.
- 29.
- 30.
The author failed to obtain a copy of the judgment. The overview here is based on what has been reported in Tunisian legal literature.
- 31.
According to Article 10(2) of Law No. 58-27 of 4 March 1958 Concerning Public Guardianship, Unofficial Guardianship (kafāla) and Adoption, ‘Tunisians can adopt foreign [children]’.
- 32.
See, however, the contradicting Tunisian judgments on this issue in the field of choice of law, infra Sect. 14.3.2.
- 33.
Judgment of the Tunis CFI no. 30070 of 28 June 1999 (unpublished), reported in Ben Achour 2017, p 119.
- 34.
See Article 9(1) of the 1958 law, supra note 31. However, Paragraph (3) exempts divorced or widowed adopters from the marriage requirement, taking into consideration the best interests of the child.
- 35.
Decision of the Mont Lebanon CA of 10 June 1987 (unpublished). For a critical analysis of this decision, see Najm 1996–1997, pp 194–199.
- 36.
- 37.
- 38.
See Najjar 1989, p 655.
- 39.
Decision of the Plenary Chamber of the Supreme Court (Qaḍāʾ al-Majlis al-Aʿlā) no. 658 of 30 December 2004 (on file with author), cited in Loukili 2012, pp 154–155.
- 40.
The summary of the case is based on Zaher 2009, p 79.
- 41.
The Convention Concerning the Status of Persons and Family and Judicial Cooperation of 10 August 1981. The convention, by way of reference to Articles 16 and 17 of the 1957 Franco-Moroccan Convention on Judicial Assistance in Civil and Commercial Matters, recognizes the de jure effect of judgments rendered by the courts of the contracting States (Article 7).
- 42.
The SC also rejected the argument based on the applicability of the Franco-Moroccan 1981 Convention, concluding that the case was governed by Moroccan law applicable as a matter of public policy. In the court’s view, such an application was allowed by the convention itself (Article 4). For a critical analysis of this decision, see Zaher 2009, pp 83 et seq.
- 43.
The summary of the case is based on an excerpt of the judgment published in Chedly and Ghazouani 2008, pp 239–240.
- 44.
The term ‘nasab’ is used in the judgment. On the issue of terminology, see supra note 4.
- 45.
Decision of the Tunisian SC no. 5480 of 1 March 2001 (unpublished), reported in Chedly and Ghazouani 2008, pp 239–240.
- 46.
Decision of the Lebanese SC no. 81 of 31 May 2007, Al-ʿAdl no. 4 of 2007, p 1702 (on file with author).
- 47.
The court considered that the indirect jurisdiction of the French rendering court can be accepted even if is based on the nationality of the plaintiff. According to the court, the rule rejecting nationality as an appropriate ground for indirect jurisdiction applies only to contentious judgments to the exclusion of non-contentious judgments.
- 48.
The court considered that what matters in establishing reciprocity is the likelihood of enforcing Lebanese judgments and not the special treatment that those judgments would face under specific recognition requirements of the rendering State.
- 49.
Although the law does not apply to the Muslim and the Druze communities and despite the fact that the title of the law suggests that it is of religious nature, Lebanese scholars consider that this law is ‘civil’ law applied by ‘civil’ and not ‘religious’ courts. See Gannagé 2010, no. 13. But from the same author admitting the ‘religious’ influence on this law in matters of filiation, see Gannagé 2001, p 865.
- 50.
Decision of the Tunis CFI no. 72380 of 29 November 1982, RTD 1984, p 105, with a case note by Kotrane.
- 51.
Ibid.
- 52.
Decision of the Tunisian SC no. 50867 of 29 March 2018 (unpublished, on file with author). The nationality of the parties is not clear, but it seems that they are all Tunisian nationals.
- 53.
Article 149 of the Moroccan FC: ‘Adoption has no legal value and does not result in any of the effects of legitimate filiation.’
- 54.
Decision of the Casablanca CFI of 23 November 1962, cited in Sarehane 2013, no. 118. However, the same author mentioned, in the field of choice of law, a decision of the Moroccan Supreme Court in which it rejected the claim of the mother to establish the natural filiation of the child to his biological father but nevertheless recognized certain effects in terms of maintenance under the law applicable to the case, Sarehane 2013, no. 117. See also Loukili 2012, p 158, fn. 78.
- 55.
In the same vein, the Supreme Court affirmed in 2005 the validity of the acknowledgement because it was made in accordance with Islamic principles, although it was established that the children were born out of wedlock as the result of an illegitimate relationship between the Moroccan father and the French mother. See decision of the Supreme Court no. 142 of 9 March 2005, cited in Loukili 2012, pp 144–145. This decision shows that the strict compliance with the methods for establishing filiation as recognized under Islamic law matters more than the outcome of such an application. Therefore, these methods can be applied to produce a child-friendly outcome if the traditional rules are respected.
- 56.
See Al-Jandalī 2011, p 561, fn. 1, invoking the best interests of the child and his right to be raised in his cultural environment as a justification against the adoption of Tunisian children by non-Muslims foreigners. See also Boukhari 2011, p 148, for whom the intervention of public policy in the matter of adoption is justified by the need to protect the personal status of the child by prohibiting adoption of (Muslim) Tunisian children by (non-Muslim) foreigners.
- 57.
For example, the decision of Sousse CFI no. 2074 of 5 May 1993, RTD 1996, pp 171 et seqq., with a case note by Ben Ḥalīma, reproduced in Ben Ḥalīma 2012, p 1118. See also the decision of the Tunisian SC no. 295 of 23 March 1999, in which the court declared that ‘adoption remains in the mind of the majority religiously prohibited from the point of view of Islamic law although it is legally permitted.’ (unpublished), reported in Al-Jandalī 2011, pp 538–539.
- 58.
See the decision of the Kairouan CFI no. 20973 of 6 March 1989 (unpublished), reported in Al-Jandalī 2011, pp 536–538, considering that the prohibition of adoption is based on undisputed religious texts and the consensus of legal scholars despite the legislative intervention.
- 59.
On the recurring intense debate – especially after the 2011 Revolution – regarding the abolition of adoption in Tunisia due to its running counter to undisputed Sharia principles, see Afif Jaidi 2014. A former Minister of Justice (M. Noureddine Bhiri) from the Islamist party (Ennahdha) indicated in an interview given to a Qatari newspaper on 19 April 2012 in his capacity as member of the government that Tunisian family law as a whole was in conformity with Islamic prescriptions except for adoption (emphasis added). When he was asked about the possibility of a reform of Tunisian family law, he simply mentioned that the Tunisian people have other priorities. The interview, which is still posted on the official website of the Ministry of Justice, is available at www.e-justice.tn/index.php?id=1125 (accessed 5 January 2019).
- 60.
See the decision of the Cantonal Court of Tunis no. 12639 of 12 July 2018 (unpublished, on file with author), affirming the adoption of a child by a single unmarried Tunisian mother. The judge deciding the case based his decision on the best interests of the child (the need for care, the critical health condition of the child) and the spirit of the Tunisian adoption law, which aims at protecting children, to overcome the legal marriage requirement.
- 61.
Cf. Boukhari 2011, pp 146, 148.
- 62.
It is not clear whether the girl had reached the age of majority at the time of the adoption or not. However, the case is presented in literature as an adult adoption case.
- 63.
Judgment of the Tunis CFI no. 9985 of 5 November 1999 (unpublished), reported in Ben Achour 2017, pp 119–120, who agreed with the decision stating that adoption of adults was unknown in Tunisia. However, this opinion seems to be oblivious of the Tunisian SC’s decision no. 57743 of 22 April 1997, Bull. Civ. part 1 of 1997, p 273, in which the court considered that the adoption of an adult is not permitted because under Tunisian law, the requirement that the adoptee should be a minor who has not reached the age of twenty is a matter of public policy. Accordingly, the court overturned the decision of the lower court, which had allowed the adoption by a Tunisian woman of a 32-year-old woman according to her birth certificate as delivered by the General Consulate of Abu Dhabi.
- 64.
See in particular the study based on the examination of 100 decisions rendered by the Cantonal Court of Tunis made by the judge Ghazouani 2013, pp 389 et seqq.
- 65.
- 66.
See Yassari 2015, p 947.
- 67.
All the cases concern the adoption of Tunisian children (presumed to be Muslims) made by mixed couples that include a Tunisian partner (and therefore presumed to be Muslim). See however, Būshamāwī 2009, p 12, in which the author mentions three unpublished court decisions in which adoption was approved for foreign (presumably non-Muslim) couples without requiring any certificate of conversion to Islam.
- 68.
The fact that court decisions are not regularly published complicates matters further.
- 69.
According to the Ghazouani himself, ‘it is still premature to affirm that the … Court … has completely abandoned the religious impediment to adoption’, and the trend he has detected needs to be confirmed, Ghazouani 2013, p 405.
- 70.
Recent major developments include (1) the abolishment of the circulaire prohibiting Tunisian women from marrying non-Muslims by the circulaire of the Ministry of Justice no. 164 of 8 September 2017; (2) the presidential initiative on equality and individual freedoms, which resulted in a ‘truly revolutionary’ report that courageously tackles all the problematic issue of the incompatibilities and the incoherencies found in the Tunisian legal system in connection with the newly adopted Tunisian Constitution and the human rights conventions concluded by Tunisia (the Colibe Report), see the report available at http://legal-agenda.com/uploads/Rapport-COLIBE.pdf (accessed 24 February 2019). Finally, (3) the announcement of the legal reform of the PSC to modify the Islamic succession rules in the current law so as to achieve more equality-compliant and non-discriminatory rules. See the law proposal on the reform of succession law in Tunisia adopted by the Ministerial Council on 23 November 2018 (on file with author).
- 71.
Reactions to these developments often resulted in protests and calls to fight to preserve and maintain the ‘Islamic’ identity of Tunisian society.
- 72.
See Law No. 98-75 of 28 October 1998 Regarding the Allocation of a Patronymic Family Name to Abandoned Children and Those of Unknown Parentage, amended by Law No. 2003-51 of 7 July 2003, allowing for the biological paternity of adulterine children to be legally established.
- 73.
See Kotrane, supra note 50, p 112.
- 74.
Ibid.
- 75.
See the critical assessment of this decision by Kotrane, ibid.
- 76.
See for example, Ben Achour 2017, p 122.
- 77.
It should be noted that case law on the issue of establishing nasab in the absence of marriage is inconsistent at best. See notes below.
- 78.
The distinction has important legal implications. See the Tunisian SC decision – in a case involving a choice-of-law issue – no. 18400/18709 of 2 July 2008 (unpublished, on file with author).
- 79.
See the parliamentary debates on the 1998 law and its 2003 amendment available at www.legislation.tn/ (accessed 15 February 2019).
- 80.
Compare the opinion based on this very same judgment, according to which ‘the right of each child to establish his/her filiation seems to be of public order’. Benjemia et al. 2012, p 220.
- 81.
Ibid.
- 82.
The decision of the Tunisian SC no. 38151/37494 of 19 October 2009, Bull. Civ. 2009, p 317. See comments on this case by Ketata in Ketata and Belhadj 2013, p 192.
- 83.
The terminology here is the one used by the court.
- 84.
See the Colibe Report, supra note 70, pp 189 et seqq., suggesting the abolition of all distinctions between children with regard to the circumstances of birth. Unfortunately, the proposal was not adopted.
- 85.
Gannagé 2010, no. 41.
- 86.
- 87.
In the same sense, Najjar 1989, p 655.
- 88.
In the field of choice of law, see the decision of the Mount Lebanon CFI of 29 January 1991, Al-ʿAdl 1990–1991, p 262, and Gannagé 2001, p 865, in which the court excluded the application of the Brazilian law applicable to the adulterine filiation of a Brazilian child because, in application of Brazilian law, the child would have been conferred succession rights equal to those conferred to legitimate children.
- 89.
For a critical analysis of this decision, see the comment of M-C Najm in Al-ʿAdl no. 1 of 2008, pp 186 et seqq. Finally, in a decision rendered in 2011, the Lebanese SC recognized a succession right of the child, but limited to 12.5% of the estate as an ‘illegitimate child’ compared to 87.5% for his adopted sister as a ‘legitimate child’, Lebanese SC no. 56 of 21 June 2011 (unpublished, on file with author). The decision was ultimately refused enforcement in France on the ground of public policy because of its discriminatory character towards ‘illegitimate children’, Paris CA no. 14/15527 of 16 December 2015, Revue de planification patrimoniale belge et internationale no. 2 of 2016, p 185, with a case note by Van Boxstael, pp 199 et seqq.
- 90.
Needless to say, the absence of reported cases does not necessarily mean that such cases do not actually exist.
- 91.
For the sake of brevity, the author will cite only to sources that are representative of the law in the majority of Arab jurisdictions. Two general characteristics of these sources deserve to be highlighted. First, in the overwhelming majority of cases, especially those written in Arabic, the content does not substantially differ. Second, almost all of these writings are based on early works of Egyptian scholars and abundantly cite, for the sake of convenience, early French case law. On the ‘verbose’ character of legal writing in Egypt that can be transposed to the majority of Arab countries, see Berger 2002.
- 92.
It is possible to come across a number of articles dealing with various aspects of choice of law in matters of adoption, nasab, establishment of filiation, etc. These articles are often written in Arabic and published in local law reviews.
- 93.
In a matter of adoption, however, see Najm 1996–1997.
- 94.
- 95.
See for example Al-Dāwudī 2013, pp 352–353 on public policy in the field of the enforcement of foreign judgments, and pp 239 et seqq. on public policy in the field of choice of law.
- 96.
It is undisputed in the overwhelming majority of Arab countries that interfaith marriages between non-Muslim men and Muslim women are null and void. See for example the case decided in the field of choice of law by the Dubai SC appeal no. 51 of 21 October 2008 (on file with author), invalidating a marriage between a British-Turkish Muslim woman and her British husband who refused to convert to Islam. Tunisia is the exception, see supra note 70, although, in practice, some mayors would refuse to conclude a marriage between Tunisian women and non-Muslim foreigners without their being presented a certificate of conversion to Islam. See Bobin 2018.
- 97.
See however the decision of the Egyptian SC which allowed the enforcement of a French judgment assigning custody of the child to his mother, decision no. 200/66 of 14 May 2005 (unpublished, on file with author), rendered in application of the French-Egyptian bilateral Convention on Judicial Assistance of 15 March 1982. Compare this with the decision of the Tunisian SC no. 7286 of 2 March 2001, RJL no. 1 of 2002, p 183, concerning the enforcement of a Belgian judgment awarding the custody of one of the children of the divorced couple to his Danish mother domiciled in Belgium, and with the SC’s contradictory and questionable earlier judgment in the very same case no. 69523 of 4 January 1999, RJL no. 1 of 2002, p 167. On both judgments, see the comment of M Ghazouani, RTD 2001, p 201 (in Arabic).
- 98.
See the reported cases from Morocco provided above.
- 99.
This section does not aim to provide a comprehensive review of the issue. In a much more modest way, it tries to highlight some aspects of the dynamics of cross-border family dispute resolution in Arab countries.
- 100.
This case is interesting because the Court applied foreign laws ex officio despite the fact that the husband pleaded the application of Emirati law, knowing that Emirati case law has always treated foreign law as a fact that needs to be pleaded and its content ascertained by the party arguing for its application; otherwise Emirati law applies in family matters as well. See Article 1 of the Emirati PSC. Compare with the Dubai SC appeal no. 51 of 21 October 2008, supra note 96.
- 101.
Dubai SC decision no. 206, appeal no. 36 of 2008 of 23 September 2008 (on file with author). Similarly, the Omani SC rejected an action instituted by a father, filed in his capacity as legal tutor, seeking to declare void a marriage that his daughter concluded without his permission. The couple, which lost their patience due to the unjustified refusal of the father to accept the groom, eloped to Egypt where they concluded their marriage. The court characterized the presence and acceptance of the walī as an issue of formal validity subject to the law of the place of conclusion of the act, in this case Egyptian law as influenced by Hanafi doctrines, which under certain conditions allows the conclusion of a marriage without the presence of the legal tutor. See decision of the Omani SC no. 40 of 8 October 2005, appeal no. 2005/35 (unpublished, on file with author).
- 102.
See Egyptian SC decision no. 200/66 of 14 May 2005 and Tunisian SC no. 7286 of 2 March 2001, supra note 97.
- 103.
See Bahraini Supreme Court decision no. 8 of 17 June 2017 (unpublished, on file with author). In this case. The court quashed the order made by the lower courts requiring a Bahraini wife to move with her children to the domicile of the husband located in Egypt (or else lose the custody of her children). In this case, the Supreme Court considered that the conditions for a safe and sound custody environment were not satisfied to justify the relocation order.
- 104.
See for example the decision of the Jordanian Supreme Court no. 2004.3582 of 20 February 2005 (unpublished, on file with author). The case concerned an action brought by a grandmother of a child, in her capacity as custodian, for the enforcement of a Kuwaiti judgment on maintenance. See also the decision of the Algerian Supreme Court no. 355718 of 12 April 2006, RSC no. 1 of 2006, p 477. The case concerns an exequatur action regarding a French judgment declaring the divorce of two Algerians (Muslims) residing in France, assigning the custody of the children to the mother and ordering the father to pay maintenance. The father opposed the exequatur, arguing, inter alia, that the order to pay maintenance (nafaqa) on a monthly basis even after the expiration of the waiting period (ʿidda) was contrary to Algerian law. The court rejected the arguments, stating that the order to pay a monthly wage (ujra shahriyya) to the custodian of the children did not constitute a violation of fundamental rules of Algerian law.
- 105.
On this tendency under Moroccan law, see Loukili 2012, pp 152 et seqq.
- 106.
See the decision of the Supreme Court of Algeria no. 0773081 of 13 November 2013, RSC no. 2 of 2014, p 256. The case concerns an exequatur action regarding a Tunisian judgment declaring the divorce of the spouses (nationality unclear) for disobedience (nushūz) and conferring custody of the child to the husband. Exequatur was refused on the ground that it was inconsistent with a prior Algerian judgment. However, the court also pointed out that the Tunisian judgment could not be enforced as it was inconsistent with the established general principles on disobedience and with Algerian rules on custody, namely Articles 64 and 65 FC, which set out the priorities in awarding custody as inspired by Islamic principles. In a different case from Tunisia, a Tunisian woman who had been adopted by a Libyan woman brought an action to revoke her adoption on the ground that such adoption was not recognized in Libya based on the Islamic prohibition of adoption, see Tunis CFI no. 3917 of 19 November 1991, RJL no. 10 of 1992, p 131.
- 107.
- 108.
- 109.
This is often referred to as the privilege of religion. See, references supra note 107. For an explicit application of this principle in a case where it was decided that family law was of mandatory application if one of the parties to the dispute was Muslim, because the legislative rules were based on undisputed sources the authenticity of which were beyond any doubt as they were detailed in the Qur’an, see the decision of the Supreme Court of Qatar of 10 November 2015 (appeal no. 264 of 2015, on file with author). In this case, the Supreme Court indicated that in the connecting factor in determining the governing law in family disputes was ‘religion’ and therefore the national family legislation should apply to all Muslims. In another case from Kuwait, it was decided that the divorce of a converted Muslim woman from her Christian husband (both Lebanese nationals) married in the Maronite Church should be governed by Kuwaiti law instead of the national law of the husband in application of the conflicts rules on divorce. In casu, the law normally applicable (here Lebanese law of the concerned Christian community of the spouses) was excluded for its contradiction to public policy because, for the court, a Muslim woman cannot be subject to any other law except Sharia law. See the decision of the Kuwaiti Supreme Court of 4 March 2007 (appeal no. 315 of 2005, on file with author) and the Dubai SC judgment appeal no. 51 of 21 October 2008, supra note 96.
- 110.
Decision of the Emirati Federal SC of 10 April 2004 (appeal no. 193 of the 24th judicial year 2004, on file with author). In this case, a non-Muslim mother domiciled in England, to whom an English judgment conferred custody of the child, brought an action before the Abu Dhabi Sharia Court against the Muslim father, who had left England and settled in the UAE for work. The mother asserted her priority right in the custody of the child and requested that the child be handed over to her on the basis of the English judgment. The Emirati Federal SC rejected her claim as contrary to Sharia law. In this case, the father expressed his concerns regarding the religious upbringing of his daughter since her non-Muslim mother took the child to church and drank wine.
- 111.
See the Dubai SC no. 236 of 21 October 2008, supra note 96 (after declaring an interfaith marriage between a Muslim woman and a non-Muslim man who refused to convert to Islam as null and void, the court considered that the filiation of their child could be established only with regard to her mother).
- 112.
See the decision of the Emirati Federal SC of 12 June 2007 (appeal no. 365 of the 27th judicial year, on file with author) (affirmation of a ṭalāq divorce pronounced by a British husband against his British wife in which the application of English law as the national law of the husband was rejected as contrary to public policy and Sharia law on the ground that English law ‘deprives husbands of their right to effectuate ṭalāq’).
- 113.
See the Bahraini SC decision no. 54/2016 of 12 April 2017 (unpublished, on file with author) (a taṭlīq divorce action brought by the wife against her non-Muslim British husband based on English law, but as a consequence of a declaration of Islamic faith made by the husband during the proceeding, the divorce was ordered on application of Bahraini family law without any reference to choice of law).
- 114.
- 115.
This particular attention to the best interests of the child can be seen especially in the conflict-of-law resolution of cross-border filiation disputes, see the Tunisian SC’s decision no. 38151/37494 of 19 October 2009, supra note 82; see also the Tunis CFI judgment no. 1525 of 4 March 2006 (unpublished), reported in Chedly and Ghazouani 2008, p 641 (establishment of the filiation of a child born out of wedlock by favouring the application of Tunisian law (the national law of the father and the law of his domicile) instead of Libyan law (the law of the domicile of the child)). See also the Tunis CFI’s decision no. 41373 of 26 November 2002 (unpublished), reported in Chedly and Ghazouani 2008, p 641 (establishment of the filiation of a child born in Tunisia in an action brought by an Algerian mother against her Algerian husband; all parties were domiciled in Tunisia. The court decided to apply Tunisian law [law of the domicile of the child and the father] and not Algerian law [law of nationality of the father and the child], considering that Tunisian law is more favourable to the establishment of filiation.).
- 116.
The decision of the Sousse CFI no. 1692 of 4 July 2011, supra note 3, deserves to be highlighted. The case concerned an action on the allocation of custody of two children born out of wedlock in Luxembourg. The Tunisian father acknowledged that the children were born out of wedlock, and he explained before the court that he had to return to Tunisia with the children because their mother (a Luxembourg citizen) started living with another man and neglected her children. The social worker assigned by the court determined, in accord with the father’s arguments, that custody should be awarded to the father on the ground that the best interests of the children consisted in their being raised in an Islamic environment. The defendant contested the jurisdiction of Tunisian court on the ground that the Luxembourg court had already decided the case and granted her the guardianship of the children. The court found that the foreign judgment should be recognized. It pointed out that the ‘sudden return’ of the father with the children to Tunisia constituted a fraud as to jurisdiction in order to obtain their custody. See also the Tunis CFI, summary judgment no. 42028 of 25 September 2014 (unpublished, on file with author). That case is a summary action invalidating an interdiction order prohibiting the removal of a Tunisian child from Tunisian territory; the order was addressed to a French mother who had come to Tunisia to recover a child that had been abducted by the father. The judge deciding the case first recognized the French judgment assigning guardianship of the child to the mother before declaring the interdiction invalid.
- 117.
Muslim scholars have developed over the centuries various technics that allow them to mitigate the restrictive and absolute nature of Sharia rules while affirming the validity of traditional assumptions. One of the most notable examples is the takhayyur or talfīq (i.e. selection and fabrication respectively). This technique consists in the combination of different legal opinions from different schools to achieve a specific result. On these concepts, see Ibrahim (n.d.); Layish 2000. Another important example is the ḥiyal (sing. ḥīla), i.e. legal tricks (evasions or stratagem) that consist in recourse to Sharia-compliant methods to circumvent the Sharia-based prohibitions and achieve the desired result (see Schacht 1986). These techniques show the concern of Muslim scholars to adhere to the traditional religious assumptions (sometimes in a fictitious way) while departing from them to accommodate Muslim society to its changing conditions. They should not, however, be used to demolish the traditional religious presumptions nor to declare legal (ḥalāl or mubāḥ [permitted]) what is religiously illegal, forbidden or prohibited (ḥarām) or vice versa (see the Preamble of the Moroccan FC in which King Mohamed VI declares that he could not ‘as Commander of the Faithful (amīr al-muʾminīn) permit what God has forbidden and forbid what God has permitted’). This may explain why the Tunisian example of prohibiting polygamy and allowing adoption, which were based on the neo-ijtihād, i.e. reinterpretation of religious sources, has simply never been followed in other Arab countries, where instead some clinical accommodations have been made within the traditional framework of reasoning and without reversing the legal presumptions.
- 118.
This can be exemplified by the classical doctrines of the ‘sleeping embryo’ (al-janīn al-rāqid) and nikāḥ shubha (mistaken sexual intercourse) or by the hidden adoptions achieved by acknowledging children of unknown parentage. This has led scholars to draw the general principle according to which ‘al-sharʿ yatashawwafu li-ithbāt al-nasab’ (Sharia [irresistibly] yearns to establish nasab [legitimate filiation]). The principle sometimes works against the will of the father or the ‘legitimate’ heirs who might want to avoid some legal obligations by contesting the nasab of a child. On this basis, legitimate filiation can be established as long as the illegal nature of the relationship is not revealed or ascertained.
- 119.
The political instability in many Arab countries is not a convincing argument for not reconsidering the foundations of the PIL systems in these countries, as is clearly shown by the legislative activity in this field in many Arab countries, encompassing recent reforms and codifications. However, this legislative activity has a limited impact as, apart from Tunisia, it has consisted of putting old wine in new bottles.
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Elbalti, B. (2019). The Recognition and Enforcement of Foreign Filiation Judgments in Arab Countries. In: Yassari, N., Möller, LM., Najm, MC. (eds) Filiation and the Protection of Parentless Children. T.M.C. Asser Press, The Hague. https://doi.org/10.1007/978-94-6265-311-5_14
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