Cultural Diversity in Family Law

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
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
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
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
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
International Private Law

• Ordre public
• The protection of personal integrity rights
• (Child marriages, forced marriages)

7
International Private Law

• Ordre public
• The protection of Western family law dogma
• (Polygamy, temporary marriage)

8
International Private Law

• Ordre public
• To justify the primacy of a countrys own legal
  system
• (Custody, grounds for divorce, proxy marriage)
• Claim Reluctance to apply ordre public-
  considerations

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
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
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
Substantive Family Law

• Childs best interest
• Decisions relating to the child must be made in
  the childs 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 childs needs,
  the autonomy of the parents and the states
  obligation to protect the child
• Different perceptions of child wellbeing

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
Substantive Family Law

• Cultural variants of family law institutions
• Example
• Child guardianship Spain introduced kafala

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
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
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
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
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
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
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
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
Discourse and Procedure

• The outer framework
• Human rights and the constitution
• Show increasing convergence in values
• Core convictions not negotiable

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
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
Discourse and Procedure

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

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
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
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 Gods 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.