The further interpretation of mahr in French private international law

Lyon case²⁶³ opened for other indicators of the parties’ implicit will than the location of their assets or first common domicile to be taken into consideration. In the following section I will take a closer look at the interpretation of foreign law related to mahr in the two French cases.

the foreign rule at hand. The Lyon case is a good example of this, although the result may, as we have seen, be questioned.

The main question in all the Lyon judgments is how the Muslim marriage contract

consisting only of a declaration that mahr is paid and received should be interpreted. While the focus in the first cassation is on whether the Muslim marriage contract with a clause of mahr should be seen as an expression of the parties’ intentions concerning matrimonial property regime, as discussed in section 4.4, in the second it is on the interpretation of the custom certificate. There is little doubt that the interpretation made by the Court of Appeal was incorrect.²⁶⁹ The Court of Cassation can only overrule the Court of Appeal in the interpretation of foreign law in cases of misinterpretation, but this is not necessarily the case with the custom certificates since they are evidence on what the foreign law is.

However, in our case the Court of Appeal had stated, on the basis of the certificate, that mahr was against French ordre public, and that is clearly within the jurisdiction of the Court of Cassation to adjudicate upon.²⁷⁰ It does however, when adjudicating on what ordre public is, replace the Court of Appeal’s interpretation of mahr with its own.²⁷¹ When seeing mahr as an act the Court of Cassation, according to Najm, confuses the part with the whole, a single clause with the entire contract.²⁷² Mahr is not a legal act, it is an asset, which the husband is obliged to transfer to his wife as a consequence of the Muslim marriage contract, i.e. the object of an act, not the act itself. When the Court of Cassation states that mahr “goes together with the payment of a dowry,”²⁷³ this is an erroneous statement for two reasons: First, mahr is the money or asset paid or transferred similar to a

269 Oudin (2006) pp. 15-16 and a conversation with the husband’s lawyer, Maître Courjon of the SCP de Chaisemartin et Courjon January 16, 2008.

270 Oudin (2006) pp. 15-16.

271 Ibid. pp. 15-16.

272 Najm (2006) p. 1367.

273 ”… est assorti du versement d’une dot”, 2nd page of the 2005 judgment.

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dower, but paid by the husband, it doesn’t “go together” with it. Second, it is not the equivalent of the French dowry, dot, which is paid by the parents to the couple.²⁷⁴ In the Paris case, no investigation seems to have been made into the functions of mahr in Lebanese law, i.e. comparative legal method was not applied in this case either. The Court of Appeal used Polish and Lebanese law in accordance with the nationality principle in French law when adjudicating the validity of the marriage, and the sources were custom certificates provided by the Polish Consulate in Paris and the Lebanese Ministry of Justice respectively. Najm criticises the custom certificate for “giving imprecise information on the inter-communitarian law in Lebanon”,²⁷⁵ but without saying in what way. The Court of Appeal used Lebanese law only to determine the validity of the marriage contract, and applied French law when determining the financial duties the couple had towards each other. This is fairly contradictory, as this implies that the couple had, by signing a Muslim marriage contract, chosen the regime of separate estates, but not that Muslim law should govern their matrimonial property relations. The court does not give any reasons for this;

after it had concluded that mahr implies that the couple explicitly has chosen the regime of separate estates it started to deal with the question of financial effects of the marriage and divorce²⁷⁶ simply by referring to article 270 in the Civil Code – which only concerns financial effects of divorce. This contradiction was not appealed and is therefore not reversed or commented upon by the Court of Cassation, probably because the application of French law in this matter was very much to the wife’s advantage. In practice the final result is, in any case, a compromise between the claims of the two parties.

To conclude, I have found few traces of any application of comparative legal method in any of the cases. The only factor which resembles a comparative approach in any way is the use of statements from local practitioners, but the foreign concepts are interpreted

274 Encyclopédie Dalloz (1990) on dot (dowry).

275 Najm (2006) p. 1374, my translation.

276 Although the marriage was seen as void, the couple were ruled to have been in good faith concerning its validity, and thereby, according to French law, the financial effects were as if the marriage had been valid.

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through their seemingly closest French equivalent, with little or no investigation into the differences.

4.6 Mahr, comparative legal method and gender equality in French courts