Lisbon Court of Appeal, proc. 405/19.3YRLSB-2, 07.04.2020

FOREIGN JUDGMENT REVIEW | MOROCCAN DIVORCE | REPUDIATION | INTERNATIONAL PUBLIC ORDER | PRINCIPLE OF EQUALITY

 

 

Tribunal da Relação de Lisboa, proc. 405/19.3YRLSB-2, 07.04.2020

 

JURISDICTION: Civil

SUBJECT: Foreign judgment review

RAPPORTEUR: Pedro Martins

RULING: Grants exequatur to divorce decision.

DOMESTIC LAW:

1976 Constitution (Articles 7, 8, 13, 20 and 36)

Code of Civil Procedure, as amended by Decree-Law No. 329-A/95, of 12 December 1995 (Articles 978, 979, 980, 1096)

Civil Code (Article 1781)

Supreme Court of Justice judgment, proc. 103/13.1YRLSB.S1, 14.03.2017

Lisbon Court of Appeal judgment, proc 10602/2005-2, 18/10/2007

Lisbon Court of Appeal judgment, proc. 2778/19.9YRLSB, 11.12.2019

INTERNATIONAL LAW:

Regulation Brussels II bis (Article 46)

Regulation Roma III

The Hague Convention of 1970

Unibank judgment of the European Union Court of Justice, proc. C-260/97, 17.06.1999

FOREIGN LAW:

Moroccan Family Code (Mudawana), approved by Dahir No. 1-04-22, of 03.02.2004

Moroccan Personal Status Code (1957-1958)

Moroccan Law No. 1.93.347, of 10.09.1993

Ley 15/2005, of 8 July 2005 (Spain)

Spanish Civil Code

French Civil Code (Articles 237 and 238)

Cour de Cassation, First Civil Division, judgment of 23.10.2013, proc. 12-25.802

Cour de Cassation, First Civil Division, judgment of 23.10.2013, proc. 12-21.344

KEYWORDS: Foreign judgment review; international public order; principle of equality; Moroccan divorce; equality between the parties; Kingdom of Morocco; principles of public order of the Portuguese State; revocable divorce; Muslim law; Idda; Mudawana; repudiation; dissolution of marriage; revocable repudiation; legal waiting period; dowry; wali; Muslim notaries; Islamic law; Jewish law; talaq; ghet; tamlik; human dignity of the wife; Muslim divorce; husband’s unilateral declaration; Algerian law; limping situations; translation; foreign legal system; administrative and religious procedures; religious authorities

COMMENTS:

1. After issuing conflicting decisions regarding the review of foreign judgments that granted the unilateral divorce by the husband’s unilateral declaration (talaq, also translated as divorce by repudiation), in the judgment of the proc. 10602/2005-2, of 18.10.2007, and in the judgment of the proc. 1378/18.YRLSB-7, of 19.11.2019, the Lisbon Court of Appeal had the opportunity to take a further position on this matter in the judgment of the proc. 405/19.3YRLSB-2, of 07.04.2020.

 

2. The judgment discussed the possibility that the confirmation of this divorce, granted by the Moroccan legal system, would have a result manifestly incompatible with the principles of international public order of the Portuguese State, “which, in those circumstances, should not confirm it, by rejecting the set of rules that allowed such decision”, in accordance with the provisions of Article 980(f) ex vi Article 1096(f) of the Portuguese Code of Civil Procedure. The judgment mentions that “regarding a particular type of divorce, both Islamic and Jewish law have been serving as an example for a set of rules that questions fundamental principles of international public order of the Portuguese State, and, therefore, should not be applied”.

 

3. First, the Court discussed whether the principles of international public order of the Portuguese State would be breached due to the absence in Portuguese law of the legal concept of unilateral divorce by declaration of only one party. Regarding this issue, the Court concluded that “the idea of divorce at the request of one of the spouses is no longer extraneous to our legal system and, therefore, it no longer causes a feeling of rejection”. Although the “divorce at the request of one of the spouses” is not yet stipulated, since 2008, the Portuguese legal system already recognises the divorce without consent of the other spouse, albeit under the requirements set by Article 1781 of the Portuguese Civil Code, among which those provided for in paragraph (a), that the de facto separation for a period of one consecutive year be considered enough, and paragraph (d), that the marriage breakdown be deemed permanent. For this reason, it is concluded that the absence of the legal concept of unilateral divorce in the Portuguese legal system is not, per se, an obstacle to recognise a foreign judgment that authorises it.

 

4. Next, the Court analyses the possibility that the legal concept of unilateral divorce by the husband’s declaration (repudiation) would breach the principles of international public order of the Portuguese State as it does not guarantee the compliance with the principle of equality, which is established by the general regime of fundamental rights of the Constitution of the Portuguese Republic in its Article 16. This argument has been broken down into two formulations: (a) one that considers the conditions of equality between spouses at the time of the constitution and, consequently, of the dissolution of the marriage, pursuant to Article 36 of the Constitution; (b) another that refers to the equality of arms in the proceedings and the adversarial principle, which is a fundamental right in access to justice, pursuant to Article 20 of the Constitution, and expressly provided for in Article 1096(f) of the Portuguese Code of Civil Procedure as one of the causes that may object to the recognition of a foreign judgment. The latter was the ground raised by the Court to refuse the exequatur in its judgment in proc. 1378/18.YRLSB-7, of 19.11.2019 [ annotation available at https://inclusivecourts.pt/en/tribunal-da-relacao-de-lisboa-proc-1378-18-yrlsb-7-19-11-2019].

 

5. On this matter, the present judgment draws attention to the need to take into account the “specific” circumstances of the case that determine the degree of connection with national law, being more demanding where there is a strong connection to the international public order of the Portuguese State. It also rhetorically allows for the possibility that the review of a foreign judgment be requested by the party that is in a situation of inequality in the marriage. For this purpose, the court resorts to the literature on the subject, especially Portuguese lawyers Ferrer Correia, Luís Lima Pinheiro and Mariana Silva Dias.

 

6. According to the Court, the very weak connection to the Portuguese legal system would justify a less demanding compliance of the results of the review of a foreign judgment with the principles of international public order of the Portuguese State. So, the Court considers that this case is precisely one of those where there is no relevant connection to the Portuguese State, because the applicant and the defendant were both Moroccan and lived in Morocco, their divorce had been granted in Morocco in 1995, about one and a half year after marriage, over more than 24 years at the time of the decision, and considered also that the applicant only acquired Portuguese nationality in 2009 and resides in France, while his ex-wife continues to reside in Morocco.

 

7. Finally, the Court considers the non-jurisdictional nature of the judgment under review, with consequences also on the previously mentioned argument of the equality of arms between the parties. The Court here resorts to the Hague Convention of 1970, where divorces are recognised if they were granted in the course of legal proceedings or any other procedure officially recognised in the Contracting State of origin, which would include not only divorce legal decisions, but also those resulting from administrative or religious proceedings, as will be the case here.

 

8. The decision in the case under analysis seems to have given due consideration to the legal concept of review of a foreign judgment, by establishing that “it is not correct to hold that the review could only be dismissed when the operative part of the judgment to be reviewed conflicts, in itself, with the international public order [in accordance with Article 1096(f) of the Portuguese Code of Civil Procedure, in the 1939/1961 wording, which referred to as contrary ‘decisions’], being thus irrelevant whether or not its grounds conflict with the international public order [without considering that Article 1096(f) of the Portuguese Code of Civil Procedure, in the 1996 wording, and Article 980(f) of the Portuguese Code of Civil Procedure, in the 2013 wording, refer to as incompatible ‘results’]”. From here, the judgment itself notes that this interpretation threatens the position of the Portuguese system of foreign judgment review as a system of individualised recognition, with a mostly formal control.

 

9. The logic conclusion of this argument seems to impose some precision when the Court considers the “specific” case-by-case facts. As said in the annotation to the judgment in proc. 10602/2005-2, of 18.10.2007 [available at https://inclusivecourts.pt/tribunal-da-relacao-de-lisboa-proc-10602-2005-2-18-10-2007/], such consideration should always be made by reference to the “results” of the decision of review of the foreign judgment and not autonomously by reference to the facts at hand in the judgment under review, as it turned out to be the case here. This is, indeed, the solution imposed by the system established in Article 980(f) ex vi Article 1096(f) of the Portuguese Code of Civil Procedure, following the amendment of Decree-law no. 329-A/95, of 12 December 1995.

 

10. Article 1096(f) of the Portuguese Code of Civil Procedure was amended to replace the requirement that the judgment under review could not contain “decisions contrary to the principles of the Portuguese public order” by the current wording, which prescribes that the judgment under review “cannot contain a decision which recognition would lead to a result manifestly incompatible with the principles of international public order of the Portuguese State” (emphasis added). This change in the legislative framework strengthened the relative nature of the consideration of a case-by-case judgment that looks at the result of the review of a foreign judgment and the exceptional nature of the knowledge of international public order in the review of foreign judgments, by qualifying the result of the review as “manifestly incompatible” with that one.

 

11. Assim se evita também o potencial de criação de limping situations ao nível internacional, pelas quais se poderia recusar o reconhecimento na ordem jurídica nacional do divórcio decretado e a produzir efeitos plenos na ordem jurídica com a qual mantém elementos de maior conexão, como bem refere o acórdão.

 

Ricardo Sousa da Cunha

Guest contributor, integrated researcher at JusGov Translated from the Portuguese by Igor Pedro Gil, Inovtrad - Tradução, Formação e Serviços

 

Cite as: CUNHA, Ricardo Sousa da, “[Annotation to the judgment of] Lisbon Court of Appeal, proc. 405/19.3YRLSB-2, 07.04.2020”, 2021, available at https://inclusivecourts.pt/en/jurisprudencia2/

 

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12. It is worth noting that the Court makes extensive use of references to foreign law, not only Moroccan law, which is directly relevant for the assessment of the instant case, but also Spanish and French law, with references to legislation and case law. The French courts’ insistence in the spouses’ residence in France is actually invoked by the Court in support of its option to confirm the decision under review. According to the Court, even the very restrictive French courts would grant exequatur in a case such as the one at hand, since both spouses are Moroccan and resided in Morocco at the time of the divorce (issued over 24 years ago), none of them resides in Portugal and the applicant only acquired Portuguese nationality in 2009.

 

13. This judgment is also interesting as an illustration of how the Court accesses the content of Moroccan law and for the attention drawn by the Court to the differences between the linguistic versions used, i.e. Portuguese, French and Spanish. The judgment mentions that the Public Prosecutor requested that the applicant provide a translation of the Moroccan legislation applied to the dissolution of the marriage. The Court did not simply rely on the translation submitted by the applicant, having compared it with French and Spanish translations available online (published by the Moroccan Ministry of Justice and Freedoms, and by the Asociación de Trabajadores e Inmigrantes Marroquíes en España, respectively). The judgment points out the discrepancies among the different linguistic versions on several occasions, acknowledging the “problems associated with the terms used and their translations”. In the presentation of the applicable legislation, the Court cites several passages of the Moroccan Family Code, in French, adding a Portuguese translation for the provisions deemed directly relevant for the case at hand. The judgment shows that the Court consulted legislation and reports available from Moroccan official websites, as well as academic publications by Portuguese and foreign authors (albeit not Moroccan) on the interpretation of the Moroccan Family Code and on the confirmation by European domestic courts of decisions adopted under the Code. The article by Mariana Silva Dias is actually mentioned as having helped the Court to “improve the translation of the decision” submitted by the applicant. Contrary to what was suggested by the applicant, the decision under review was not a court decision issued in the context of a divorce by mutual agreement, but instead a transcript by Muslim notaries, under the supervision of a judge, of the unilateral decision by the applicant to divorce his wife, expressed in her presence.

Patrícia Jerónimo

 

Cite as: JERÓNIMO, Patrícia, “[Annotation to the judgment of] Lisbon Court of Appeal, proc. 405/19.3YRLSB-2, 07.04.2020”, 2021, available at https://inclusivecourts.pt/en/jurisprudencia2/

 

 

REFERENCES IN THE LITERATURE: n.a.

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