Normativity and Diversity in Family Law

This report is based on 14 country reports namely Iraq, Pakistan, Tunisia, United Arab Emirates, Japan, South Africa, Czech Republic, Hungary, Germany, Belgium, Austria, Finland, Greece, and Turkey. It aims at detecting the ways in which claims relating to cultural traditions, ethnic customs, religious convictions, and sexual orientation—or any other kinds of claims that are not officially accommodated in state law—are raised and dealt with in those jurisdictions. The comparison first sets family law in its historical and demographic context, including the implications of mobility and migration as well as of technological and social developments. Secondly it analyzes the actions and reactions of the entities involved, namely the legislature and the judiciary, but also civil society actors. Furthermore, it explores the reactions of the communities concerned and, finally, draws conclusions on some of the challenges that multiculturalism poses to family law today.

This paper proposes to offer specific examples of some multicultural challenges to family law of an on-going nature by focusing on (i) the Ahmadiyya communities to whom Muslim family law is no longer formally considered applicable since they were declared non-Muslim in 1974, and (ii) transgender communities known variously as hijra, khusra or khwajasara, whose claims for civil and political rights as well as application of family laws to them have in recent years met with some success. Using legislation (or lack thereof) and case law from Pakistani courts, this report will highlight the erratic and ad-hoc manner in which claims are made and responded to by courts and state institutions. It will advance the argument that Muslim family law in Pakistan is of a porous, amoebic nature, plural, diverse and often inconsistent in its responses. Finding answers to challenging questions such as what family law governs the Ahmadiyya communities and on what basis, or how, to calculate inheritance rights of transgender persons falls almost invariably to the judiciary, who then direct the government to legislate accordingly (A third example relates to Hindu and Christian communities where federal and provincial legislatures have recently passed laws, including the Sindh Hindu Marriage Act 2016 and the Hindu Marriage Act 2017. Due to constraints of space, this example will not be dealt with in any detail, but it is flagged up here as an example of how the state and her institutions respond to family law matters of religious minorities.). The report concludes through these selected examples that Pakistan’s family law is a complex multi-layered phenomenon: clear at times, opaque at others. Whilst the Pakistan judiciary has taken upon itself the interpretation and application of Muslim family law, it is treading cautiously and stops short of offering solutions on sensitive and potentially explosive issues such as application of Muslim family law to the Ahmadiyya communities, leaving significant numbers of Pakistanis in ‘limping’ situations (Tanveer, Ahmadi, Christian marriages not being registered, 2016). On the other hand, in the case of transgender communities and their access to rights and entitlements in family law, Pakistani courts have demonstrated a robust and courageous approach, moving well beyond conventional positions on the subject. The concluding reflections will also highlight some implications for private international law.

The study of the role of multiculturalism in Tunisian family law reveals a paradox. Before independence, Jews and Muslims had their own courts which applied their own religious law, whereas French and other European citizens went to colonial courts. Right after independence, however, Tunisian family law broke with this pluralistic logic as far as religion was concerned. It also turned its back on traditional Islamic family law and adopted a modern family law that provided practically no room for diversity. Because its family model was unique among Arabic countries, the Tunisian legal system and its courts protected it by rejecting all other family models, especially those that were inspired by the Islamic tradition. Some courts, however, still follow an Islamic interpretation of Tunisian family law. By doing so, they have adopted an Islamic conception of the family which excludes non-Muslim persons. Religious distinctions have thus been brought back into a system which, at first glance, appears not to make such distinctions. Ultimately, religious diversity is becoming a source of discrimination.

While multiculturalism is a main characteristic of society in the United Arab Emirates, the federation of seven emirates cannot be described as an immigration country per se. Rather, the United Arab Emirates form a multicultural society by necessity. The country’s immigration system is primarily oriented to immigration of a temporary nature, as labor migration is not designed to be permanent. Instead, foreigners are generally expected to return to their home countries once their employment has come to an end. Nonetheless, the multicultural and multinational makeup of the United Arab Emirates and the country’s historically developed legal pluralism give rise to multiple challenges both in domestic family law and in Emirati private international law. A clear division of family and succession law along religious lines (as regards substantive law and, more recently, jurisdiction of the courts) and the heterogeneous demographic setting of the United Arab Emirates result in the application of various family law regimes, largely depending on both the nationality and the religious affiliation of the parties. At the same time, the reality of multinationalism has not yet been fully embraced by all fragments of society. This can be seen in the debate surrounding interreligious and binational marriages as well as in the country’s private international law regime.

This paper explores how the Japanese state and the courts have responded to multicultural challenges in family law, looking in particular at non-marital (heterosexual) unions, same-sex unions, transgender persons and marriage, families built around LGBT couples, the alleged medical neglect of children as a result of the religious beliefs of the parents, and the challenges faced by children of multi-national families. I conclude that the state has not in general been responsive to multicultural claims, often justifying its unresponsiveness by referring to the need to protect the “traditional Japanese family”, which it construes as a formally married heterosexual couple and their (marital) children.

The South African legal system is a mixed, pluralistic one, and its family law resembles this potpourri of laws made up of state and non-state laws. State law includes the general law which is a mix of Roman-Dutch and English law, and customary law that include the laws of traditional communities. Certain non-state laws based on religion, especially in family law, have also been receiving protection from the judiciary despite not being officially recognised by the state. There are four types of marriages: common law marriages, civil unions, customary marriages and unrecognised religious marriages. They are regulated in terms of different legislation, common law rules, and judge-made rules which have led to differences and inequalities in many respects. Managing family justice in such a diverse setting has been a struggle, and the time has come for the South African government to reconsider its approach to the plurality of marriage laws, which does not always make a wonderful blend of potpourri.

The national report on multicultural challenges in family law analyses how the multicultural phenomena understood as a plurality of ways of life in society—based, for example, on cultural tradition, ethnic background, custom, religious conviction or sexual orientation—interact with family law in the Czech Republic. It demonstrates that in a relatively homogenous society with a developed and functioning constitutional system based on the principles of democracy and the rule of law, there still exist real problems concerning the management of diversity in the area of family law. The identified problematic areas include, for instance, the conservative approach to two-person relationships and problems concerning parental care, such as the overuse of substitute-care institutions. Special attention is paid to one of the most sensitive problems in the Czech Republic, the vulnerable position of Roma children. Finally, the conclusion takes into account the broader political context of the most recent developments as relating to the perception of diversity. Anti-migration and identitarian political sentiments perceive diversity as a danger. Even though the normative and applicatory sphere of family law has not been directly impacted so far, the article argues that political tensions pose a serious risk for social diversity and its accommodation via family law.

The report on Hungary identifies the current government’s political approach, self-labelled as “illiberal democracy” and manifested in a new Constitution and a Civil Code, as a decisive factor regarding family politics and the legal framework regulating various aspects of family life and private life. The authors find that these family policies/frameworks (directly or indirectly) create an unequal situation for those who do not live according to the government’s preferred family model. This model means, first of all, a family which is based on the marriage of a man and a woman, who raise together their (biological) children, preferably under middle-class socioeconomic conditions. Those who do not fit into this model (cohabiting partners, single parents, same-sex couples, families living in poverty, etc.) may find themselves in a disfavoured “minority situation” despite the fact that these groups of individuals/families constitute a significant part of Hungarian society.

Dealing with diversity remains a challenging matter for Belgian family law. Claims based on cultural, religious and sexual differences come in different shapes depending on the context in which they arise. They are presented upfront, without any intermediation, when they are linked to a sexual minority. By contrast, demands and claims linked to cross-cultural cases come in through the mediation of other, technical rules. One seems to observe an evolution in opposite directions: on the one hand, claims by sexual minorities are accommodated, even triggering the adoption of statutory law; on the other hand, cross-cultural claims, which are, directly or indirectly linked to religion, are left to courts to deal with. This leads to a varied approach, with some courts adopting a rather ‘technical’ perspective on such cases, while other courts make some room for claims based on cultural or religious differences. This paper will attempt to verify this hypothesis.

The following report—which was prepared in 2018 for the 20th International Congress of Comparative Law in Fukuoka—shows that German law does not follow a consistent strategy in tackling multicultural conflicts. In substance, German law has no clear view on whether multicultural conflicts are to be addressed with tolerance or restriction. Moreover, the mechanisms for implementing a tolerant or restrictive approach are rather random: in some parts diversity is addressed by private international law, while in other parts substantive law steps in.

This paper aims to provide insight into how Austrian family law has been affected by the issue of diversity in the last few years. For this purpose, we will use specific cases to examine recent diversity debates, legal claims and legislative amendments in family law. First, we will identify the most striking contemporary claims related to social diversity that have been raised recently in Austria by individuals as well as interest groups, including political parties. In a second step, we will analyse the manner in which the state has dealt with these demands—specifically, whether they have resulted in decisions, legislative proposals or legal amendments. Finally, we will assess whether the underlying needs have been satisfied by the state’s actions and whether tensions remain. In Austria, the most visible actions of recent years are related to same-sex couples, and culminated in a landmark judgment in December 2017 granting same-sex couples access to marriage. As family law is in constant motion, it remains to be seen what other topics will arise to stir up Austrian family law in the future.

This chapter addresses cultural and religious diversity in Finnish family law. It reviews legislation, case law and existing research on the institution of marriage, divorce and some specific issues related to how the rights of the child and the best interests of child are understood in Finnish law. It is observed that although culture and religion are important factors in the organization of family life within cultural and religious communities and also hold relevance for relations between the state and communities, ‘cultural claims’ have not been common in the field of family law. It is argued that cases involving identity-based demands related to children may reach courts more easily than those that relate only to adults. The chapter draws on emerging research which has focused mainly on family practices of Muslims in Finland. All in all, Finnish courts seem to be rather skilful in striking a balance between cultural claims and universal rights.

Diversity of both nationality and religion is currently a reality in Greece. This reality has no impact on the Greek legal system, which in principle applies without distinction to all Greek citizens and all persons residing in Greece. However, the exceptional recognition of the direct application of religious law and jurisdiction—that is, application without reference to the existing general set of conflict of law rules—to personal status matters of the Muslim minority of Western Thrace has given rise to important concerns regarding the applicable legislation and its impact on the Greek legal order in the context of the current international environment, which provides enhanced protection of human rights. This paper provides a succinct illustration of the management of religious law by a secular state, Greece, as shown in the particular case of this Muslim minority, also with reference to the ad hoc ECtHR judgment in Molla Sali v Greece.

There are citizens with a variety of ethnic and religious cultures living in Turkey; however, the Turkish Constitution makes no distinctions between these groups. Therefore, the Turkish Civil Code, which regulates family relations, does not take into consideration any cultural differences. Some members of Turkish society have adopted a completely secular way of life. However, Muslim traditions and ideas are not completely absent or neglected in Turkish society today. Although marriage before an imam is not recognized by Turkish law, there are couples who opt to marry only before an imam. What are the consequences of imam-marriage; what happens to the inheritance, matrimonial or maintenance rights that spouses in such marriages can claim? One example is the dower or mahr, which is considered a cultural tradition in Turkish society. Although the mahr is not regulated in the Turkish Civil Code, claims to it have been the subject matter of cases brought before Turkish courts. How do the courts deal with these cases? Another issue is the religious education of Alevi children. Despite ECHR decisions on this issue, the Turkish state still makes religious culture and ethics courses compulsory for Alevi pupils, and the syllabi of these courses mostly convey a Sunni interpretation of Islam, with the principal Alevi rites presented as cultural activities or folk rituals. How do Alevi parents react to this situation? These three different issues will be examined in this article to investigate how the state is tackling such claims.