Personal Status Norms and European Public Policy: An Intensified Concrete-Effects Test in the Case of Muslim Transnational Families
Personal Status Norms and European Public Policy: An Intensified Concrete-Effects Test in the Case of Muslim Transnational Families

Summary/Abstract: European private international law increasingly encounters transnational family relations connected to foreign personal status norms derived from Shari'a, especially in matters involving marriage effects, divorce, inheritance, and maintenance. These cases raise questions regarding European public policy and how forums should deal with the effects of Shari'a-based norms when they are in abstracto discriminatory, but their concrete effects are not manifestly incompatible with public policy. Drawing on the established concept of "ordre public atténué", this study argues that the public policy exception should not be an automatic mechanism of exclusion of norms, nor should cultural or religious identity justify the recognition of in concreto discriminatory effects. Building on this framework, the article proposes an "intensified concrete-effects test". Under this test, the forum should analyse the disadvantage of the protected party, verify whether the applicable law provides for social or economic compensatory mechanisms or protections, the existence of a valid and freely expressed consent where relevant, and whether the exclusion of the foreign norm or the non-recognition of its effects may be detrimental to the protected party.

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