Mahr and gender equality in Swedish courts

In summation, the courts in 1993 clearly struggled both with the interpretation and the application of Muslim law, while in the 2005 case I cannot detect any direct

misinterpretations of Iranian law, although the qualification remains dubious. This may in part be due to the differences in the quality of the foreign legislations in question, but the Swedish courts now seem to have both a more judicious and more thorough approach to the interpretation of the foreign law.

quite unfamiliar for Mrs. N.S. The court held that the couple all in all had stronger ties to Israel than Sweden, and therefore chose to apply Israeli law. Lacking the municipal court judgment in its entirety, and with only brief references to it in the court of appeal judgment, it is difficult to say which gender justice norm that lies behind this reasoning. The court does not really seem to investigate into the social and cultural conditions in Israel, it just assumes that it is better for the woman to have the laws she’s familiar with applied. Nor does it discuss the degree of gender justice in any of the two legal systems it has to choose between. The court thus appears somewhat mechanical in its effort to provide a degree of gender equality.

The result of the 1993 judgment is, at first glance, in the woman’s favour: She obtains mahr. The alternative in Swedish law would probably be that she would come out with nothing: The main rule in both Swedish and Norwegian law is to divide the matrimonial property equally, but the marriage had been so short that the couple had not had the time to obtain a common property. The principle of unequal division, skjevdeling, applies,

particularly in short marriages like this one: each spouse takes out of the matrimonial property what they can prove that they brought into it. In Sweden, after a year’s marriage 20% of the joint (netto) property is to be divided equally, ²²² and this marriage was shorter than that, especially if the basis for the calculation is the time the properties really were joined together. By letting her have mahr, she was at least left with a certain amount of money,²²³ even though it is not an enormous sum. However, she did not get her

maintenance, which she most likely would have had a right to in Israel. If the court had applied comparative law and investigated a bit further into the matter, this could have been avoided.

The reasoning in the 2005 case seems to be more formalistic also in its approach towards the gendered aspects of the case: The courts rather mechanically apply their interpretation of the marriage contract and Iranian law, and no mention is made of gender justice issues or

222 Agell (2003) p. 378 and the Swedish Marriage Act, Äktenskapsbalken, ch. 6.

223 NIS 11,250. See note 181.

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even the parties’ situation. The parties are strictly held to the Iranian marriage contract and no adjustments are made on base of equity.²²⁴ The husband must be said to have been rather unwise in making his mother-in-law-to-be his proxy in negotiating the marriage contract, and the court holds him responsible for that decision. The result is indeed woman-friendly: She gets the entire mahr of SEK 250,000. Mahr is qualified as a redistribution of property to even out the differences in economic situation, and further seen as a kind of contractual obligation the husband has to fulfil. The husband’s economic situation is not taken into account, even though this is indeed a large sum and the fact that the couple never really lived together. Had mahr only been seen as a way to even out property relations, the result might have been different, but the contractual aspects win through in the Swedish courts and create this very woman-friendly result. One might wonder what the result would have been if the roles had been reversed – if the result in this particular case is unfair towards anybody it is not the woman. There are lots of sub-currents in this case that only in part come to the surface. From the parties’ allegations it seems that the husband has been a tool for the wife so she could come to Sweden, where she is obviously most determined to stay. However, he is still obliged to pay her the entire dower. He does have some

responsibility for his misfortune, since he made his mother-in-law his proxy, but the equity of the result is debatable due to the large amount of money involved. The court never discussed the limits of the authority given to his mother-in-law. This case illustrates very well that the application of Muslim laws does not always leave the woman short;

sometimes it is the man who has to pay.

224 Since Iranian law was applied, the only way this could have happened is probably through the ordre public reservation. On a world wide basis the courts rarely have the same opportunity as Scandinavian courts to modify contracts.

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4 France

4.1 Introduction

The French cases distinguish themselves from the cases from other countries in that they do not concern a woman claiming mahr. Mahr rather plays a part as an indicator of the parties’

choice of matrimonial property regime. French couples when marrying choose freely between several different property regimes, but a written agreement is required, either in the form of a contrat de mariage, an individually negotiated contract which often regulates the matrimonial property relations in detail,²²⁵ or through filling out the formula when performing the required civil marriage. The régime legal²²⁶ is applied if no such

agreements exist. In French private international law, there are several ways the spouses may be seen as having chosen a particular country’s laws to regulate their matrimonial property relations. First of all, there is the contrat de mariage or what is interpreted as its equivalent. If no written expression of the parties’ intentions exists, which is the situation in the vast majority of cases, the court has to investigate into the presumed intentions of the parties. The first joint domicile is now favoured by the tribunals as the major indicator, since it is fairly easy to apply, and has gradually replaced the localization of the couple’s assets as indicator of their will.²²⁷

The literature on the adjudication of mahr thereby focuses on the choice of matrimonial property regimes as well. Only the Lebanese-French scholar and judge Marie-Claude Najm discusses the interpretation of the concept mahr thoroughly, although David Annoussamy, president of the Société de législation comparée Pondichéry,²²⁸ also has some noteworthy remarks about mahr.

225 Bell (1998) p. 254.

226 Régime de la communauté réduite aux acquis, the regime of community of the property obtained after marriage. Code Civil art. 1400 ff, Bell (1998) p. 255.

227 See Mayer (1994) pp. 507-508 and the Hague convention on the law applicable to matrimonial property regimes of March 14, 1978.

228 Pondichéry or Puducherry is a former French colony in India, of which Karikal is one of the provinces.

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I have found two private international law cases which concern mahr, one of which has been twice in the Court of Cassation. After presenting the cases I will say a little about the qualification issues in these judgments. The gender justice aspects are so closely related to the choice of laws in the French judgments that I will treat those together before moving on to the further interpretation of mahr and the use of comparative legal method.