FOREIGN JUDGMENT REVIEW | DIVORCE | REPUDIATION | INTERNATIONAL PUBLIC ORDER OF THE PORTUGUESE STATE | PRINCIPLE OF EQUALITY

 

Lisbon Court of Appeal, proc. 10602/2005-2, 18.10.2007

 

JURISDICTION: Civil

SUBJECT: Foreign judgment review

RAPPORTEUR: Jorge Leal

RULING: Grant of the request to review the judgment issued by the Court of First Instance of Rabat, Notary Section, of the Kingdom of Morocco, which had ratified the divorce, by repudiation, between the applicant and his wife, confirming the judgment to be valid for all purposes in Portugal.

DOMESTIC LAW:

Portuguese Constitution (Articles 1, 13, 36)

Code of Civil Procedure (Articles 1096, 1101)

Civil Code [Articles 1775, 1781(a)]

Supreme Court of Justice judgment, proc. 05B4168, 21.02.2006

Lisbon Court of Appeal judgment, proc. 454-2006-7, 03.10.2006

INTERNATIONAL LAW:

Protocol no. 7 to the European Convention on Human Rights, of 1984 (Article 5)

European Convention on Human Rights, of 1950 (Article 6)

European Court of Human Rights judgment D.D. v. France, proc. 3/02, 08.11.2005

FOREIGN LAW:

Moroccan Family Code, approved by Dahir no. 1-04-22, of 03.02.2004

Swedish Law of 14 May 1987

Lei espanhola n.¬ļ 15/2005, de 8 de julho

French Cour de Cassation judgment, 1st Civil Chamber, 18.12.1979

French Cour de Cassation judgment, 1st Civil Chamber, 03.11.1983

French Cour de Cassation judgment, 1st Civil Chamber, 01.06.1994

French Cour de Cassation judgment, 1st Civil Chamber, 31.01.1995

French Cour de Cassation judgment, 1st Civil Chamber, proc. 01-11549, 17.02.2004

Spanish High Court judgment, Civil Division, proc. 1894/1997, 15.07.1997

Spanish High Court judgment, Civil Division, proc. 583/1993, 21.03.2000

Spanish High Court judgment, Civil Division, proc. 3059/1990, 03.04.2001

Spanish High Court judgment, Civil Division, proc. 264/2003, 27.07.2004

KEYWORDS: Foreign judgment review; divorce, principle of equality; international public order of the Portuguese State; Western world; Moroccan law; repudiation; principle of equality between the spouses; Moroccan court; Moroccan citizen; dignity of the human being; Portuguese nationality; act of repudiation; legal viduity period; Muslim tradition; Muslim law; viduit√©; Idda; Mout‚Äô√Ę; adoul; unilateral repudiation by the husband; Islamic countries; repudiating husband; repudiated wife; Moroccan legal system

COMMENTS:

  1. This judgment represents the traditional position of the Portuguese case law regarding the review of foreign judgments that have granted a divorce by repudiation (talaq). For the purposes of the recognition of the foreign judgment‚Äôs effects in the Portuguese legal system, the judgment weighed the specificities of the legal framework of unilateral dissolution of marriage that is typical of Islamic law in light of the exception of international public order of the Portuguese State, pursuant to Article 1096 (f) of the Portuguese Code of Civil Procedure. A similar ruling was rendered by the Lisbon Court of Appeal, in its judgment dated 7 April 2020, case no. 405/19.3YRLSB-2. A different view was taken, however, by the same Lisbon Court of Appeal, in its judgment dated 19.11.2019, case no. 1378/18.YRLSB-7, where the Court preferred to enquire about the observance of the principle of equality of arms in the proceedings leading to the unilateral dissolution of marriage by repudiation (talaq), in compliance with the adversarial principle as stipulated by Article 1096 (b) of the Portuguese Code of Civil Procedure ‚Äď while also discussing its concern about the principle of international public order of the Portuguese State, pursuant to Article 1096 (f) of the Portuguese Code of Civil Procedure.

 

  1. The review of foreign judgments originating from legal systems with legal solutions which are very different from those in force in Portugal has raised major multicultural challenges for domestic courts [see PATR√ćCIA JER√ďNIMO, ‚ÄúIntoler√Ęncia, integra√ß√£o e acomoda√ß√£o jur√≠dica das minorias isl√Ęmicas na Europa: Os desafios postos √† pr√°tica judicial‚ÄĚ, in Paulo Pulido Adrag√£o et al. (eds.), Atas do II Col√≥quio Luso-Italiano sobre Liberdade Religiosa. A Intoler√Ęncia Religiosa no Mundo: Estado da Quest√£o, digital edition, Faculdade de Direito da Universidade do Porto, 2017, pp. 59-100]. The review of foreign judgments aims at enforcing before the authorities of the State where the coercive power is to be exercised a foreign judgment which has the force of res judicata. Three models of foreign judgment review are identified in the literature: the system of automatic recognition (ipso iure), as in Italy and Germany; the system of exequatur, applied in Portugal, which entails a control of the (procedural or substantive) conditions of the judgment under review; and the combined system, like in France [see LUIŐĀS DE LIMA PINHEIRO, ‚ÄúRegime interno de reconhecimento de decis√Ķes judiciais estrangeiras‚ÄĚ, Revista da Ordem dos Advogados, year 61, 2, 2001, pp. 581 and ff.]. The requirements for the confirmation of the foreign judgment are laid down in Article 1096 of the Portuguese Code of Civil Procedure. In order for a foreign judgment to be confirmed it has to meet the following requirements: (a) There must be no doubt regarding the authenticity of the document containing the judgment or the intelligence of the decision; (b) The judgment has to be final in accordance with the law of the country in which it was issued; (c) The judgment has to originate in a foreign court whose jurisdiction was not established by means of fraud and must not rule on matters under the exclusive competence of the Portuguese courts; (d) There must be no cause to invoke the exception of pending litigation or res judicata with regard to a case under the jurisdiction of a Portuguese court, except if it was the foreign court that prevented the jurisdiction; (e) The defendant must have been regularly summoned in accordance with the law of the country of the court of origin, and the principles of an adversarial process and of equality of the parties must have been observed in the proceedings; (f) The judgment under review cannot contain a ruling whose recognition would lead to a result manifestly incompatible with the principles of international public order of the Portuguese State.

 

  1. The review of foreign judgments originating from legal systems with legal solutions which are very different from those in force in Portugal has raised major multicultural challenges for domestic courts [see PATR√ćCIA JER√ďNIMO, ‚ÄúIntoler√Ęncia, integra√ß√£o e acomoda√ß√£o jur√≠dica das minorias isl√Ęmicas na Europa: Os desafios postos √† pr√°tica judicial‚ÄĚ, in Paulo Pulido Adrag√£o et al. (eds.), Atas do II Col√≥quio Luso-Italiano sobre Liberdade Religiosa. A Intoler√Ęncia Religiosa no Mundo: Estado da Quest√£o, digital edition, Faculdade de Direito da Universidade do Porto, 2017, pp. 59-100]. The review of foreign judgments aims at enforcing before the authorities of the State where the coercive power is to be exercised a foreign judgment which has the force of res judicata. Three models of foreign judgment review are identified in the literature: the system of automatic recognition (ipso iure), as in Italy and Germany; the system of exequatur, applied in Portugal, which entails a control of the (procedural or substantive) conditions of the judgment under review; and the combined system, like in France [see LUIŐĀS DE LIMA PINHEIRO, ‚ÄúRegime interno de reconhecimento de decis√Ķes judiciais estrangeiras‚ÄĚ, Revista da Ordem dos Advogados, year 61, 2, 2001, pp. 581 and ff.]. The requirements for the confirmation of the foreign judgment are laid down in Article 1096 of the Portuguese Code of Civil Procedure. In order for a foreign judgment to be confirmed it has to meet the following requirements: (a) There must be no doubt regarding the authenticity of the document containing the judgment or the intelligence of the decision; (b) The judgment has to be final in accordance with the law of the country in which it was issued; (c) The judgment has to originate in a foreign court whose jurisdiction was not established by means of fraud and must not rule on matters under the exclusive competence of the Portuguese courts; (d) There must be no cause to invoke the exception of pending litigation or res judicata with regard to a case under the jurisdiction of a Portuguese court, except if it was the foreign court that prevented the jurisdiction; (e) The defendant must have been regularly summoned in accordance with the law of the country of the court of origin, and the principles of an adversarial process and of equality of the parties must have been observed in the proceedings; (f) The judgment under review cannot contain a ruling whose recognition would lead to a result manifestly incompatible with the principles of international public order of the Portuguese State.

 

  1. The issue here is the review of a foreign judgment originating in a legal system of Islamic law, namely, the review of the judgment by the Court of First Instance of Rabat, Notary Section, which ratified a divorce by repudiation (talaq). The translation of legal solutions of Islamic legal systems into Western ones is not always an easy task due to major differences between the comparative legal solutions, as well as between the contexts they emerge from. Besides, the Islamic legal traditions (Sunni and Shia) to be considered herein are also very different. Divorce by repudiation (talaq) corresponds to one of the procedures of dissolution of marriage by the husband’s unilateral declaration permitted by Islamic law (Sharia’a) and codified in several legal systems in the Muslim world, in the case of Morocco, in Articles 79 to 93 of the Moroccan Family Code, approved by the Dahir no. 1-04-22, dated 03.02.2004, and cited in the judgment under discussion. The divorce by repudiation (talaq) is not the preferred modality in the teachings of the Prophet, which constitutes one of the sources of Islamic law [see SALIM FARRAR and GHENA KRAYEM, Accommodating Muslims under Common Law: A Comparative Analysis, New York, Routledge, 2016, pp. 59 and ff.]. The traditional Talaq (al-sunnah) is subdivided in talaq al-ahsan, which involves a single revocable pronouncement of divorce and sexual abstinence during the waiting period, and the talaq al-hasan, which involves three pronouncements made during the wife’s menstrual periods intervening between them, and no intercourse having taken place during that time. The talaq al-bid'ah, which is another form of divorce and reflects pre-Islamic divorce customs, is not recognised in the Shiite tradition and its practice may have been denounced by the Prophet and the second caliph Umar, as it does not observe the waiting period and irrevocably terminates the marriage by the declaration of talaq repeated three times. Some other forms of dissolution of marriage foreseen in Sha’aria allow the contractual divorce initiated by the wife (Khula), in which the Prophet instructs the husband (verse 2:228 of the Quran) to agree with his wife’s wish to divorce if she returns, as a rule, her dowry (mahr). A marriage can also be dissolved by means of a judicial divorce settled on compelling grounds. Despite the unilateral and contractual possibilities of divorce, a judicial intervention is required for the regulation of the divorce’s consequences, in particular those pertaining to the couple’s assets and the regulation of parental responsibilities.

 

  1. Several authors have expressed reservations about the possibility of recognition of a foreign judgment concerning a divorce by repudiation (talaq). Ferrer Correia argues that the repudiation of the Portuguese wife by her Muslim husband breaches the constitutional provision that enshrines the principle of equality between spouses. But if the wife has assented to the repudiation ‚Äď in the act itself or afterwards ‚Äď there are no grounds for invoking public order if the repudiation has occurred abroad, under the law of the country of domicile of the parties, applicable pursuant to Article 31 (2) of the Portuguese Civil Code; and the same applies if the wife wishes to recognise the effects of repudiation in Portugal, v.g., in order to remarry [see FERRER CORREIA, Li√ß√Ķes‚Ķ, op. cit., pp. 415-416]. With reference to the potential breach of the international public order of the Portuguese State, Mariana Silva Dias welcomes the recognition of a foreign judgment that granted the talaq abroad before the emigration of the parties to a Western State; however, the author expresses reservations regarding a repudiation declared in the State of origin when the parties are domiciled in a Western State and she also firmly opposes the recognition of the judgment when the repudiation is declared in the Western State where the parties are domiciled [see MARIANA MADEIRA DA SILVA DIAS, ‚ÄúO reconhecimento do rep√ļdio isl√Ęmico pelo ordenamento jur√≠dico portugu√™s: A exce√ß√£o de ordem p√ļblica internacional‚ÄĚ, JULGAR, no. 23, 2014, p. 312].

 

  1. Different solutions have been found in foreign legal systems. The judgment under discussion points out the evolution within the French case law of the Cour de Cassation, which has a combined system of recognition of a foreign judgment that declared the talaq; more recently the same court dismissed the confirmation of the cases in which the wife opposes the recognition of a divorce requested when both spouses were already residing in France, as it is contrary to the principle of equality between spouses. Spain has been granting exequatur to divorces by repudiation except in the event of revocable divorces, since it undermines the principle of legal certainty and security of the international public order of the Spanish State (with reference to the judgment of the Spanish High Court, dated 15.07.1997, appeal no. 1894/1997, and the Spanish literature on the subject). In the Netherlands, the legislation allows for the recognition of repudiations declared abroad prior to the moving of both spouses or of one of them to a State that does not allow repudiation, as well as for those cases of Muslim couples domiciled in this State at the time when the repudiation is declared, establishing as a requirement that the repudiation complies with the husband‚Äôs personal law, even in cases of dual citizenship, and admitting its extension to non-Muslim women ‚Äď on the condition that the wife consents to this form of dissolution. In Article 57 of the Belgian Code of International Law, the recognition of an act of repudiation occurred abroad shall fulfil the following three requirements: the repudiation led to a court decision; the wife was summoned to contest the claim and there was no doubt about her agreement to the dissolution of the marriage without any ambiguity or compulsion; and none of the spouses is a national or is domiciled in a State that does not authorise this form of dissolution of marriage [see MARIANA MADEIRA DA SILVA DIAS, ‚ÄúO reconhecimento do rep√ļdio isl√Ęmico‚Ķ‚ÄĚ, op. cit., pp. 305 and ff.].

 

  1. When considering the possibility opened by Article 1096 (f) of the Portuguese Code of Civil Procedure to dismiss the divorce by repudiation (talaq) if it led to a result manifestly incompatible with the principles of international public order of the Portuguese State, the judgment under discussion first notes that the domestic legal framework does not authorise the unilateral divorce and several authors even doubt that this solution complies with the Portuguese Constitution. Jorge Miranda and Rui Medeiros, in their explanation of Article 67 of the Portuguese Constitution, termed this solution as ‚Äúconstitutionally dubious‚ÄĚ, since marriage is the subject of a constitutional guarantee, given that it does not constitute a precarious situation and the family founded on marriage must be protected by law [see JORGE MIRANDA and RUI MEDEIROS, Constitui√ß√£o Portuguesa Anotada, vol. I, Coimbra, Coimbra Editora, 2005, p. 412]. Vital Moreira and Gomes Canotilho share the same point of view but differ on the grounds; they consider that the divorce at one spouse‚Äôs sole discretion is ‚Äúconstitutionally questionable‚ÄĚ as it impairs the essential core of the right to divorce granted to both spouses along with the personal freedom and the right to the free development of one‚Äôs personality [see VITAL MOREIRA and GOMES CANOTILHO, Constitui√ß√£o da Rep√ļblica Portuguesa Anotada, vol. I, 4.th ed. rev., Coimbra, Coimbra Editora, 2007]. Other authors think otherwise. Carlos Pamplona Corte-Real and Jos√© Silva Pereira have argued that the divorce-failure should only be dependent on the will and views of the spouses and the judge should play a minimal role when assessing the definite nature of the breakdown desired by one of the spouses [see CARLOS PAMPLONA CORTE-REAL and JOS√Č SILVA PEREIRA, Direito da Fam√≠lia: T√≥picos para uma Reflex√£o Cr√≠tica, 2.nd ed. rev., Lisbon, AAFDL, 2011, p. 22]. Fid√©lia Proen√ßa de Carvalho is more emphatic when arguing for the possibility that one of the spouses, unilaterally, and even with the opposition of the other spouse, may terminate the marital contract, since it will free the marriage from one of its major stigmas ‚Äď the notion of perpetuity [see FID√ČLIA PROEN√áA DE CARVALHO, A Filosofia da Ruptura Conjugal, Lisboa, Pedro Ferreira, 2002, pp. 86-87]. The judgment under discussion points out the law-maker‚Äôs freedom to regulate the requirements for the dissolution of marriage by divorce, pursuant to Article 36 (2) of the Portuguese Constitution, and invokes legislative initiatives like legislative proposal no. 232/X, submitted by the political party Bloco de Esquerda (legal regime of the divorce at the request of one of the spouses).

 

  1. The issues raised regarding the constitutional admissibility of the unilateral divorce for breach of the special constitutional guarantee of marriage as the preferable way to ensure the fundamental right to form a family, pursuant to Article 36 of the Portuguese Constitution, deserve to be analysed separately from the issues raised regarding the violation of the exercise, on equal terms (Article 13 of the Portuguese Constitution), of the fundamental right to develop one‚Äôs personality (Article 26 of the Portuguese Constitution) by divorcing one‚Äôs spouse. The judgment under discussion opted for analysing in particular the second issue, with reference, besides Articles 13 and 36 of the Portuguese Constitution, to Article 5 of Protocol no. 7 to the European Convention on Human Rights, whereby ‚Äúspouses shall enjoy equality of rights and responsibilities of a private law character between them, and in their relations with their children, as to marriage, during marriage and in the event of its dissolution. This Article shall not prevent States from taking such measures as are necessary in the interests of the children‚ÄĚ. The Court concluded that it was not possible to dismiss without hesitations the foreign judgment for being manifestly incompatible with the principles of international public order of the Portuguese State, namely if it appears that the rights of the defendant spouse have been minimally taken into account, particularly in regard to the consequences of divorce in her conditions of subsistence. For this reason, the Court decided to confirm the judgment under review.

 

  1. The substantive, legal and constitutional considerations regarding the admissibility of the unilateral divorce in the Portuguese legal system must not be overestimated. When considering the observance of the exception of international public order, methodologically, the Lisbon Court of Appeal is seized to decide if the recognition of the foreign judgment would ‚Äúresult‚ÄĚ in a ‚Äúmanifestly intolerable‚ÄĚ offence to the guiding principles and values. In the absence of a substantive delimitation of the concept of ‚Äúinternational public order‚ÄĚ, only possible on a case-by-case basis, the binary consideration of the consequences of any of the ‚Äúresults‚ÄĚ of recognition or non-recognition is more decisive to determine whether or not we have a ‚Äúmanifestly intolerable‚ÄĚ offence to the public order of the State. In this exercise, the legislator seems to have reduced the relevance of the substantive control of the exception of international public order, which only warrants the non-recognition of a foreign judgment in the event it ‚Äúresults‚ÄĚ in a ‚Äúmanifestly intolerable‚ÄĚ offence, and confirmed its adherence to the theory of mitigated effect of the exception of international public order, in line with the criticism in the literature of its ‚Äúvague, topical and relative‚ÄĚ character, which amply indicates the exceptionality of this regime. In light of the above, we also cannot see the merit of the exercise of listing facts that may admit or dismiss, in general, the recognition of a foreign judgment of talaq, with reference to the usual residence, nationality or any other quality regarding any of the spouses. Even if they reside in a State whose legal system authorises unilateral divorce, the former spouses may still have ties with their country of origin, which can only be considered appropriately on a case-by-case basis, together with other factors, including the potential for fraud, which is in itself a sufficient ground to dismiss the recognition of the judgment under review.

 

  1. The immediate or almost exclusive reference to the exception of international public order of the State corresponds to a substantive consideration that, if admitted prima facie, may open the door to a unilateral substantive control of what, in reality, should be a cosmopolitan plural relation of Comparative Law, guided by the principle of equivalency. The exception of international public order of the Portuguese State is the ultima ratio of substantive control having regard to the requirements of legal certainty and security of the private international legal exchanges of the State (in order to avoid limping situations) which, if used crudely, opens the door to potential unilateral excesses in the illusory refusal to import only apparent ethnic implants ‚Äď the recognition of a foreign judgment addresses the effects of a unilateral divorce that has already been granted, but does not grant it itself. Thus, we agree with the judgment under discussion when it refers that the recognition of the foreign judgment cannot be dismissed given the impossibility to draw decisive conclusions on the ‚Äúresult‚ÄĚ being ‚Äúmanifestly incompatible‚ÄĚ with the international public order of the Portuguese State ‚Äď and, for this result, it is enough to consider that the breach of the principle of equality (Article 13 of the Portuguese Constitution) in the exercise of the fundamental right to form a family (Article 36 of the Portuguese Constitution) and of the right to the free development of one‚Äôs personality (Article 26 of the Portuguese Constitution) is the same argument used by those who defend and those who oppose the unilateral divorce in the domestic legal system. We can hardly draw any definitive conclusions from here regarding the international public order of the Portuguese State, at least without endorsing one of the expressed proposals, which is not at all the purpose of the exception of international public order of the Portuguese State for the review of foreign judgments. Similarly, it seems that this exercise does not compel the consideration of the consequences in terms of assets or regulation of parental responsibilities regarding underage children, as was the case in the judgment of the Lisbon Court of Appeal, dated 07.04.2020, case no. 405/19.3YRLSB-2. These facts have enough autonomy to justify the recognition of the foreign judgment that decreed it, as was the case in the judgment of the Lisbon Court of Appeal dated 03.10.2006, case no. 454-2006-7, or, even, the regulation of the exercise of the authority of the State of destination if the children and former spouses come to reside there, without the need to breach the spouses‚Äô right to the recognition of the dissolution of the marriage.

 

  1. We understand that it is tempting to use the domestic argument of breach of the principle of equality (Article 13 of the Portuguese Constitution) in the exercise of the fundamental right to form a family (Article 36 of the Portuguese Constitution) and to the free development of one‚Äôs personality (Article 26 of the Portuguese Constitution), used by those who defend or oppose the unilateral divorce in the Portuguese legal system. This is the natural result of using arguments of Comparative Law in the development of domestic law. In doing so, this consideration shall however include the fundamental protection of difference encompassed by the prohibition of discrimination for reasons of ‚Äúterritory of origin, religion‚ÄĚ, foreseen in Article 13 of the Portuguese Constitution, with reference to the same right to a free development of one‚Äôs personality. This consideration even applies upstream in the analysis of the exceptionality of the substantive control of the international public order of the Portuguese State that must be weighed against the international openness of the Portuguese State, pursuant to Articles 7 and 8 of the Portuguese Constitution. Well, the constitutional principles are not guaranteed according to an ‚Äúall-or-nothing‚ÄĚ logic, but instead by ‚Äúdegrees‚ÄĚ that consider a systemic relation with the other constitutional principles, one of them being, precisely, the comparative ‚Äúcosmopolitan‚ÄĚ openness of the Portuguese State, in this case enhanced by the ‚Äúmulticultural case law‚ÄĚ. A high degree of supra-national openness (international and European) of the Portuguese State is also one of the genetic markers of the Portuguese State‚Äôs public order, as it may refer to the legal pluralism allowed by the Portuguese Constitution, namely in its Article 8 regarding the acceptance of International and European Union Law. It is not difficult to include among these suggestions of legal pluralism the consideration of the sources of Comparative Law, with the potential for development of the domestic law of all the legal systems involved.

Ricardo Sousa da Cunha

Guest contributor, integrated researcher at JusGov Translated from the Portuguese by Ana Rita Silva

 

  1. It is worth noting how the Lisbon Court of Appeal introduces the many references to foreign law included in this judgment. Since the case concerns the review of a judgment issued by a Moroccan court, it is no surprise that there are references to the law in force in the Kingdom of Morocco, but the Court also gives considerable space to the French and Spanish legal systems. The Court looks into the case law of the French and Spanish higher courts in cases concerning foreign judgments which decreed the repudiation of the wife by the husband. The rulings by the Civil Division of the Spanish High Court and of the French Cour de Cassation mentioned in the judgment seem to have been checked out directly by the rapporteur from the websites of the two courts (provided in the judgment), even though the presentation of the evolution of the French case law is largely based on the summary made by the European Court of Human Rights, in D.D. v. France, of 2005. On the Spanish legal system, the judgment also references one academic publication by a Spanish lawyer, Carlos Esplugues Mota. This effort on the Court‚Äôs part to check foreign case law and literature is very positive, but it is somewhat odd when compared with the way it deals with Moroccan law, after all, the foreign legal system which is more directly relevant to the assessment of the case at hand. The legal framework for repudiation is presented only by reference to the relevant legislative provisions ‚Äď Articles 79 to 120 of the Moroccan Family Code, accessed online ‚Äď and to academic publications by Portuguese lawyers (Ferrer Correia and Fid√©lia Proen√ßa de Carvalho). It can be argued that the obligation imposed on Portuguese courts by Article 23(1) of the Civil Code to interpret foreign law ‚Äúwithin the system to which that law belongs and in accordance with the rules of interpretation established therein‚ÄĚ would require more diligence on the part of the Lisbon Court of Appeal when researching the content of the Moroccan law, to cover the case law of Moroccan courts and the academic writings by Moroccan lawyers. Paying attention to the way the letter of the law is being applied in practice is all the more important as it is well known that the ‚ÄúMuslim tradition‚ÄĚ, to which the Lisbon Court of Appeal makes a reference in passing, is a strongly casuistic tradition and that the most innovative legal developments occurred in the Muslim world over the past decades have been the work of the courts; developments which are often missed by European judges, largely due to the difficulties they face in accessing credible legal information about the content of foreign legal rules with religious foundations, as are the rules in the Moroccan Family Code [see PATR√ćCIA JER√ďNIMO, ‚ÄúIntoler√Ęncia, integra√ß√£o e acomoda√ß√£o jur√≠dica das minorias isl√Ęmicas na Europa: Os desafios postos √† pr√°tica judicial‚ÄĚ, in Paulo Pulido Adrag√£o et al. (eds.), Atas do II Col√≥quio Luso-Italiano sobre Liberdade Religiosa. A Intoler√Ęncia Religiosa no Mundo: Estado da Quest√£o, digital edition, Faculdade de Direito da Universidade do Porto, 2017, pp. 90-91].

Patrícia Jerónimo

REFERENCES IN THE LITERATURE:

DIAS, Mariana Madeira da Silva, ‚ÄúO reconhecimento do rep√ļdio isl√Ęmico pelo ordenamento jur√≠dico portugu√™s: A exce√ß√£o de ordem p√ļblica internacional‚ÄĚ, JULGAR, n.¬ļ 23, 2014, pp. 305 e ss.

JER√ďNIMO, Patr√≠cia, ‚ÄúIntoler√Ęncia, integra√ß√£o e acomoda√ß√£o jur√≠dica das minorias isl√Ęmicas na Europa: Os desafios postos √† pr√°tica judicial‚ÄĚ, in Paulo Pulido Adrag√£o et al. (eds.), Atas do II Col√≥quio Luso-Italiano sobre Liberdade Religiosa. A Intoler√Ęncia Religiosa no Mundo: Estado da Quest√£o, digital edition, Faculdade de Direito da Universidade do Porto, 2017, pp. 59-100.

JER√ďNIMO, Patr√≠cia, Li√ß√Ķes de Direito Comparado, Braga, ELSA-UMinho, 2015.

 

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